Manual On The Wearing of Religious Symbols in Public Areas

Manual on the
Wearing of Religious Symbols

in Public Areas
Malcolm D. Evans
Editions du Conseil de lEurope
French edition:
Manuel sur le port des symboles religieux dans les lieux publics
ISBN 978-92-871-6615-9
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do not necessarily reflect the official policy of the Council of Europe.
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ISBN 978-92-871-6616-6
Conseil de lEurope, May 2009
Printed in France
I
I General Introduction 1
II The Freedom of Thought, Conscience and Religion:
an Introduction 7
(A) The Forum Internum 8
(B) The Manifestation of Religion or Belief 9
(a) What is a religion or belief for the purposes of Article 9? 9
(b) What is a manifestation? 11
(c) When is an interference attributable to the state? 14
(C) Restrictions upon the Manifestation of Religion or Belief 17
(a) Prescribed by Law 18
(b) Necessary in a democratic society 19
(c) The margin of appreciation 20
(D) The Education of Children 22
III The Key Concepts Emerging from the Practice of the
European Court of Human Rights 25
(A) The Principle of Respect 26
(B) The Principle of Individual and Community Autonomy 30
(C) Non-discrimination in the Enjoyment of the Rights 35
(a) ECHR Article 14 35
(b) Positive obligations 39
(c) Protocol No. 12 40
(D) Living Instrument 41
IV The Role and Responsibilities of the State 43
(A) Neutrality and Impartiality 43
(B) Fostering Pluralism and Tolerance 46
(C) Protecting the Rights and Freedoms of Others 50
V The Role and Responsibilities of Individuals and
Religious Communities 57
VI The Wearing of Religious Symbols in Public Areas:
Defnitional Issues 59
(A) The Visibility of Religions and Beliefs in Public Life and in
the Public Sphere 59
Table of Contents
iv Manual on the Wearing of Religious Symbols in Public Areas
(B) What is a Religious Symbol? 62
(a) Objects of religious veneration 62
(b) Religious symbols: an objective or subjective matter? 64
(c) The role of the third party 66
(C) Wearing Symbols and the Scope of the Manual 68
(D) What is a Public Area? 73
(a) The pitfalls of a literalist approach 74
(b) An alternative approach: the public domain 75
(c) Positive obligations and the public domain 77
(d) The difculty of distinguishing the public from the
private domain 78
(E) Conclusion 81
VII The Wearing of Religious Symbols: the Practical
Application of the Principles Identifed 83
(A) The Basic Framework: a Brief Recapitulation 84
(B) The Key Questions to be Considered 87
VIII The Approach in Action: Areas of Practical
Application 89
(A) Restrictions Flowing from Laws of General Application 89
(a) The example of public safety 90
(b) The example of public security 91
(c) The question of public order 92
(B) The Wearing of Religious Symbols by those in General
State Employment 96
(a) Hospitals and medical services 99
(b) Military settings 101
(C) The Wearing of Religious Symbols in Public Educational
Institutions 103
(a) The teacher 104
(b) Students 105
(c) Administrators and others 107
(D) The Private Sector 108
(a) General private sector employment 109
(b) Private education 110
(E) The Wearing of Religious Symbols and the Criminal
Justice System 112
v Table of Contents
Annexes
I Relevant Applicable International Human Rights
Instruments 116
II Thematic Index 118
III List of Judgments and Decisions Cited (by
Alphabetical Order) 120
IV Glossary 123
I
General
Introduction
Te origins of tlis Manual lie in tle increasing interest and
importance of questions concerning tle manner in wlicl
tle freedom of religion and belief is to be enjoyed in Europe
today. Issues concerning religion and belief lave arisen
in dierent ways at dierent times, reacting to tle overall
social and political context and tle responses to tlis lave
diered greatly from one country to anotler. It is, tlen,
not surprising tlat as social and political contexts evolve,
new questions concerning tle enjoyment of tle freedom
of tlouglt, conscience and religion come to tle fore and
call for reection and response. European listory is closely
intertwined witl evolving patterns of religious and non-re-
ligious belief.
r
Indeed, tle system of sovereign states wlicl
claracterises tle composition of modern Europe owes its
origins to tle struggle to separate political governance from
religious governance and aliations. Tragically, European
listory is punctuated by many instances of conict between
followers of various religious beliefs, and of persecution by
botl tle religious and by tle non-religious of tlose wlo
eitler did not slare or wlo rejected tle belief systems of
tle dominant groups witlin tle societies of wlicl tley
formed a part.
Tere lave been a variety of responses to instances of tlis
nature over time. An early response was to seek to solve
tle problem by working towards a situation in wlicl eacl
political community was religiously leterogeneous an
approacl reected in tle Latin maxim cuius regio, eius
religio, perlaps more easily understood as tle proposition
tlat tle religious beliefs of tle people slould be tle same as
tle religious beliefs of tleir rulers. In fact, sucl an approacl
negated tle very idea of belief for most of tle people, since
For an overview see Malcolm Evans, Religious Liberty and Interna-
tional Law in Europe (Cambridge: Cambridge University Press,
,,;, reprinted :oo8).
I
Manual on the Wearing of Religious Symbols in Public Areas
it meant tlat tleir beliefs depended on tle beliefs of otlers:
if tleir rulers were to clange tleir beliefs, tle people would
lave to clange tleirs as well. Naturally, for tlose wlo took
tleir beliefs seriously tlis was an impossible state of af-
fairs and inevitably gave rise to conict. In order to reduce
tensions, a furtler development came about witl states rec-
ognising tle legitimacy of a limited number of beliefs wlicl
tley would allow to be practised witlin tleir territories.
However, for as long as tle governance of a state was prem-
ised upon tle primacy of a particular pattern of religious
belief, tlis always carried witl it tle risk of persecution
slould minority beliefs cease to be tolerated. Moreover, for
as long as religious aliation was seen as a marker of be-
longing to tle state itself, tlose wlo close not to adlere to
tle dominant religious tradition(s) would inevitably be seen
as presenting a potential tlreat to tle political elites, and
even wlen tley presented no tlreat at all, were capable of
being portrayed as posing a potential tlreat wlen it suited
tle interests of tlose in autlority to do so, rendering tlem
permanently vulnerable.
As long ago as tle early seventeentl century, lowever,
powerful voices called for a dierent approacl. Te inu-
ential international jurist, Alberico Centili, writing slortly
before tle onset of tle o Years War tlat tore apart central
Europe and, tlrougl tle Peace of Westplalia in 6(8 gave
birtl to tle modern system of European statelood, argued
tlat:
Religion is a matter of tle mind and of tle will, wlicl is
always accompanied by freedom... Religion ouglt to be free.
(I)f truly tle profession of a dierent form of religious belief
by tleir subjects does not larm princes, we are... unjust... if
we persecute tlose wlo profess anotler religion tlan our
own.
a
Tis is a plea tlat still resonates today and wlicl is yet to be
fully realised. Ever since tle triumpl of tle Enligltenment
as reected in tle writings of Locke and in its realisation in
tle Revolutions of tle late Eiglteentl century, tle idea tlat
individuals slould exercise tle freedom of tlouglt and of
conscience in matters of religion and of belief las become
increasingly well establisled and is now universally ac-
knowledged. Te more pressing diculty became low tlis
: Alberico Centili, De Iure Belli Libri Tres, book I, Clapter IX.
General Introduction
miglt be realised in an age wlicl recognised tle riglt of
states to regulate tleir own aairs free from pressure from
otlers.
Once again, a variety of approacles were drawn upon.
Some states continued tle old tradition of entering into
treaty relations wlicl permitted tlem to exercise a degree
of oversiglt and even intervention of tle manner in wlicl
particular forms of believers were treated. Otlers insisted
tlat tle riglts of believers continue to be respected wlen
territory was transferred from sovereignty of one state to
tlat of anotler. Tese practices came togetler in tle mid to
late nineteentl century wlen it became increasingly com-
mon to require newly constituted states to make commit-
ments regarding tleir treatment of potentially vulnerable
groups at tle time of tleir recognition as members of tle
international community. But low to enforce sucl com-
mitments witlout embroiling states in strife remained an
unsolved clallenge. Te beginnings of a solution emerged
after tle First World War wlen many of tle newly created
or territorially recongured states in central and eastern
Europe entered into a series of undertakings concerning
minority populations including commitments regard-
ing tleir freedom of religion and beliefs wlicl were to
be overseen and guaranteed not by otler states but by
tle international community in tle guise of tle League of
Nations. Tragically, tlese measures proved inadequate to
prevent tle lorrors tlat culminated in tle Second World
War but tley did lay tle foundations for tle emergence of
tle modern system of luman riglts protection wlicl now
provides tle means and meclanisms for tle protection of
tle riglts not just of certain minorities in some countries
witlin Europe, but of all tlose witlin tle jurisdiction of
member states of tle Council of Europe. Moreover, wlilst
listorically tle focus las been very mucl on questions con-
cerning religion and religious believers, tle luman riglts
framework adopts a dierent approacl.
Human riglts look to tle person as a wlole and at tleir
place in tle society of wlicl tley form a part. Tey do not
seek to dierentiate one person from anotler, or to value
one group or any one set of beliefs (religious or otler-
wise) more tlan otlers. Tey seek to provide a means by
wlicl to reconcile tle various conicting interests wlicl
inevitably exist witlin any democratic state in wlicl dif-
ferent understandings and dierent points of view co-exist
Human rights look to the
person as a whole and at
their place in the society of
which they form a part. They
do not seek to diferentiate
one person from another, or
to value one group or any
one set of beliefs () more
than others.
side by side. Tey seek to protect tle individual from overly
intrusive state activities, wlilst at tle same time requiring
tlat tle state provides a balanced framework tlat permits
everyone to enjoy tleir riglts to tle fullest extent tlat is
compatible witl tle riglts and freedoms of otlers. Wlilst
recognising tlat tlis is, rst and foremost, a responsibility
of tle state itself, luman riglts are nevertleless a product
of an international understanding of tle basic riglts and
obligations of persons witlin a democratic political com-
munity and are properly subject to international scrutiny
and, in contested cases, determination. Te European
Convention on Human Riglts provides tle premier means
tlrougl wlicl tlese aims are to be aclieved witlin tle
community of European states as formed by tle Council of
Europe.
Te need to nd a means of accommodating religious
diversity las played a signicant role in tle slaping of not
only modern Europe but of tle international legal system
itself. In addition, tle manner in wlicl sucl accommoda-
tions lave been aclieved las varied over time, and las
left its own listorical legacy wlicl still las reverberations
today. Tus some still may lanker for tle religiously lo-
mogenous state, in wlicl a single belief system lolds sway.
Some may seek to manage religious life tlrougl tle rec-
ognition of a limited number of autlorised religions witl
wlom tley lave a working relationslip, denying legitimacy
to tlose not ocially approved. Otlers may seek to adopt
an approacl wlicl insulates tle apparatus of tle state from
matters of religion and belief, separating tle spleres of tle
religious and spiritual from tlat of tle political governance
of society altogetler. All of tlese and otler approacles
to tle question lave tleir roots in listorical experiences
and practices wlicl reected tle dominant conceptual un-
derstandings of tleir times. Altlougl tlese may still eclo
down tle ages, tle legitimacy of sucl approacles must
today be assessed in tle liglt of tle requirements of tle lu-
man riglts framework to wlicl tley must eitler conform,
or yield. Tis is tle situation wlicl is found in Europe today
and forms tle background to tlis Manual.
Te framework of tle Convention in general, and tle
manner in wlicl it relates to tle freedom of tlouglt,
conscience and religion in particular, will be considered in
detail in Section II of tlis Manual. Section III will identify
tle key concepts wlicl lave been identied in tle juris-
Diferent approaches to
accommodating religious
diversity have their roots
in historical experiences.
The legitimacy of such
approaches must today be
assessed in the light of the
requirements of interna-
tional human rights law.
General Introduction
prudence of tle Court and Sections IV and V will consider
tle role and responsibilities of tle state and of individuals.
Tese Sections are essential to properly understand tle
central issues wlicl tlis Manual seeks to address tle
wearing of religious symbols in public areas. Section VI will
tlen look at a number of key denitional issues wlicl need
to be addressed. Section VII tlen sets out in summary fasl-
ion tle essential questions wlicl policy makers need to ask
wlen addressing issues concerning tle wearing of religious
symbols. Te nal section of tle Manual, Section VIII,
seeks to apply tlese principles and approacles to a number
of key areas and issues. For readers witl limited time, Sec-
tions VII and VIII miglt be read separately. For tle reader
witl very little time, Section VII (b) oers a succinct state-
ment of tle essential issues wlicl need to be considered.
I
The Freedom of Thought,
Conscience and Religion:
an Introduction
II
Article , provides tlat
. Everyone las tle riglt to freedom of tlouglt, con-
science and religion: tlis riglt includes freedom to
clange lis religion or belief and freedom, eitler alone
or in community witl otlers and in public or private,
to manifest lis religion or belief, in worslip, teacling,
practice or observance.
:. Freedom to manifest ones religion slall be subject
only to sucl limitations as are prescribed by law and
are necessary in a democratic society in tle interests of
public safety, for tle protection of public order, lealtl
or morals, or for tle protection of tle riglts and
freedoms of otlers.
Tis is a classic luman riglts formulation, found in all tle
major luman riglts instruments, and sets out a very clear
riglt wlicl is to be enjoyed by tle individual person, wlilst
subjecting it to a range of potential limitations intended to
safeguard tle interests of otler individuals or a variety of
community interests. Tis section looks at low Article , is
constructed and operates in practice in order tlat a better
understanding can be lad of low it applies in tle context
of religious symbols,
r
wlicl will be explored in detail in tle
later sections of tlis Manual.
Tere are now numerous monograpl lengtl works wlicl exam-
ine Article , in some detail, including, Malcolm Evans, Religious
Liberty and International Law in Europe (Cambridge: Cambridge
University Press, :oo;, reprinted :oo8), Caroline Evans, Freedom
of Religion under the European Convention on Human Rights
(Oxford: Oxford University Press, :oo), Paul Taylor, Freedom
of Religion: UN and European Human Rights Law and Practice
(Cambridge: Cambridge University Press, :oo,), Renata Uitz, Eu-
ropeans and their Rights: Freedom of Religion (Strasbourg: Council
of Europe Publisling, :oo;). For a valuable work exploring tle
practice relating to a form of religious clotling see Dominic
(A) The Forum Internum
Article ,() opens by stating tlat everyone enjoys tle
freedom of tlouglt, conscience and religion. Tis provides
an essential starting point, and tle Convention bodies lave
frequently emplasised tlat Article , primarily protects tle
splere of personal beliefs and religious creeds, i.e. tle area
wlicl is sometimes called tle forum internum. It repre-
sents tle splere of inner conviction and as sucl is abso-
lutely inviolable. Tis makes it clear tlat individuals are free
to adlere to any form of belief tlat tley wisl. Te reason
for tlis, as tle Court acknowledged in tle case of Kosteski
v. the former Yugoslav Republic of Macedonia
a
is tlat tle
notion of tle state sitting in judgment on tle state of a citi-
zens inner and personal beliefs is ablorrent and may smack
unlappily of past infamous persecutions. Believing wlat
one wisles does not, lowever, carry witl it tle riglt to act
as one wisles and tle second element of Article ,() moves
beyond tle forum internum to address tle situation wlicl
arises wlen a person wisles to act in accordance witl wlat
tley understand tleir pattern of tlouglt, conscience or
religion to mean for tlem. First, it expressly protects tle
riglt of a person to clange tleir religion or belief some-
tling wlicl arises naturally from tle rst part of tle Article
allowing unfettered freedom of tlouglt, conscience and
religion. Secondly, it expressly recognises tlat individuals
lave tle riglt to manifest tleir religion or belief. However,
tle manifestation of religion or belief is not unfettered and
may be subject to limitations, provided sucl restrictions are
in accordance witl tle provisions of Article ,(:).
It is, tlen, essential to understand wlat falls witlin tle
scope of tle forum internum and wlat falls beyond. Tis
is a particularly important question wlen considering is-
sues concerning religious symbols but since it can only be
properly considered once tle general scleme of Article ,
las been looked at, it will be returned to later. Apart from
frequently re-iterating its view tlat tle protection of tle
forum internum is tle primary purpose of Article ,, tle
Court las said relatively little about it. As a result of tlis, it
is only possible to discern its scope by examining wlat falls
McColdrick, Human Rights and Religion: Te Islamic Headscarf
Debate in Europe (Oxford: Hart Publisling, :oo6).
: Kosteski v. the former Yugoslav Republic of Macedonia, No.
,,;oioo, paragrapl ,, April :oo6
Personal beliefs and reli-
gious creeds represent the
sphere of inner conviction
and as such are absolutely
inviolable.
The Freedom of Thought, Conscience and Religion: an Introduction
witlin tle ambit of tle so called forum externum, perlaps
better described as tle splere of external manifestation, to
wlicl considerable attention las been paid.
(B) The Manifestation of Religion or Belief
Understanding wlat is meant by tle manifestation of
religion or belief lies at tle leart of tle proper application
of Article , and it presents a series of dicult questions,
wlicl will be considered in turn.
(a) What is a religion or belief for the purposes of Article 9?
Te protection of tle forum internum extends to all pat-
terns of tlouglt, conscience and religion wlereas it is
tle manifestation of religion or belief wlicl is protected
(and limited by) tle second part of Article ,() and by
Article ,(:). Does tlis mean tlat patterns of tlouglt and
conscience of a non-religious nature are not covered by tle
freedom to manifest, tlat is, is tle word belief a synonym
for religion, or does it also extend tle freedom to mani-
fest to all forms of tlouglt and conscience: Tis question
was considered by tle European Commission on Human
Riglts in tle case of Arrowsmith v. the United Kingdom in
wlicl tle Commission was of tle view tlat pacism as a
plilosoply ... falls witlin tle ambit of tle riglt to freedom
of tlouglt and conscience. Tis attitude of pacism may
tlerefore be seen as a belief (conviction) protected by
Article ,().
Tis broad, inclusive approacl wlicl places all forms of

belief on an equal footing las been followed consistently
ever since. Nevertleless, tlis does not mean tlat any form
of belief will qualify for tle purposes of Article ,(). First,
tlere are some forms of belief wlicl miglt be considered
incompatible witl Convention values altogetler and so
cannot benet from its protection at all. For example,
Article ;
(
of tle Convention expressly seeks to prevent its
Arrowsmith v. the United Kingdom, No. ;o,oi;;, Commission Re-
port of : October ,;8, Decisions and Reports ,, p. ,, paragrapl 6,.
( Article ; provides: Notling in tlis Convention may be interpret-
ed as implying for any state, group or person any riglt to engage
in any activity or perform any act aimed at tle destruction of any
Understanding what is
meant by the manifesta-
tion of religion or belief lies
at the heart of the proper
application of Article 9 and it
presents a series of difcult
questions: (a) What is a
religion or belief for the pur-
poses of Article 9?; (b) What
is a manifestation?; (c) When
is an interference attribut-
able to the state?
10 Manual on the Wearing of Religious Symbols in Public Areas
provisions being used to undermine essential convention
values. Altlougl tle Court las not used Article ; to re-
move tle protections oered by Article , to believers, tlis
remains possible in appropriate cases.
Tis will always be

exceptional, lowever, and tle more common situation will
be one in wlicl tle nature of tle belief in question, wlilst
fully consonant witl Convention values, is not of a nature
wlicl attracts tle direct protection of Article ,. For exam-
ple, under Article o of tle Convention tle freedom of ex-
pression is extended to opinions and ideas. Manifestation
is, lowever, a broader notion tlan expression and so it is
necessary to consider wlat is needed to elevate an opinion
or an idea wlicl miglt be expressed under Article o into
a belief wlicl may be manifested under Article ,.
6

Te Court las studiously avoided saying wletler it consid-
ers particular forms of belief to be religious in nature and
since it is not necessary for it to do so in order to be able to
apply Article , tlis is a wise approacl. It is, lowever, clear
tlat it considers tlat wlat miglt reasonably be described as
tle mainstream religious traditions sucl as Buddlism,
Clristianity, Hinduism, Islam, )udaism, Siklism all fall
witlin its scope and it las acknowledged tlat it embraces
)elovals Witnesses, tle Clurcl of Scientology and many
otlers besides. Its applicability to cogent bodies of tlouglt
of tle riglts and freedoms set fortl lerein or at tleir limitation to
a greater extent tlan is provided for in tle Convention.
, For example, in Norwood v. the United Kingdom, tle Court found
tlat tle display of a poster by a member of an extreme riglt wing
party tlat identied Islam as a religion witl terrorism amounted
to a velement attack on a religious group was incompatible witl
tle values proclaimed and guaranteed by tle convention, notably
tolerance, social peace and non-discrimination and, as sucl,
could not benet from tle protection of Article o, tle freedom of
expression. Norwood v. the United Kingdom (dec.), No. :io,
ECHR :oo(-XI.
6 In tle Arrowsmith case tle European Commission implicitly
endorsed tle view of tle respondent UK Covernment tlat wlilst
ideas and opinions were indeed protected under Article o, tle
use of tle term belief in Article , indicated a somewlat ligler
tlreslold and tlis was conrmed by tle Court in tle case of
Campbell and Cosans v. the United Kingdom wlere it said tlat tle
term belief denotes views tlat attain a certain level of cogency,
seriousness, colesion and importance. See Campbell and Cosans
v. the United Kingdom, judgment of :, February ,8:, Series A
No. (8, paragrapl 6.
The Freedom of Thought, Conscience and Religion: an Introduction 11
of a non-religious nature, sucl as atleism and pacism,
is also well attested. More diculty las been occasioned
by less well establisled patterns of tlouglt, or by beliefs
wlicl, tlougl sincerely leld, do not oer up an overall
guiding outlook of a similarly encompassing nature.
Te diculties tlat may be faced are well illustrated by tle
case of Pretty v. the United Kingdom.
;
Te applicant in tlis
case suered from a terminal illness and wisled to die but
needed assistance in order to commit suicide. Her lusband
was in principle willing to assist in tlis, but in practice was
unwilling to do so as tlis would involve lim committing
wlat was a criminal oence under tle domestic law. Mrs
Pretty argued tlat tlis breacled ler riglts under Article ,
since sle believed in and supported tle notion of assisted
suicide. Te Court rejected tlis lere, taking tle view tlat
not all opinions and convictions constitute beliefs in tle
sense protected by Article ,() of tle Convention. In order
to determine wletler tle belief was of a nature wlicl at-
tracted tlat protection, tle Court looked to see if an act of
worslip, teacling, practice or observance was at issue, and
concluded tlat it was not.
8
It close to see tle issue as being
one of personal autonomy, properly protected under Article
8 of tle Convention (concerning respect for family and
private life). Tis suggests tlat largely personally-leld ideas,
opinion and beliefs, no matter low seriously taken, will not
fall witlin tle scope of Article , altlougl tley may qualify
for protection under otler provisions of tle convention.
,

Te critical point, lowever, is tlat tley tlen do not benet
from tle particular protections oered to tle manifesta-
tion of religion or belief by Article ,.
(b) What is a manifestation?
Once it las been determined tlat a form of belief does
indeed qualify for tle purposes of Article ,, tle next
question to be asked is wletler tle activities or belaviour
wlicl lave been undertaken on tle basis of tlat form of
; Pretty v. the United Kingdom, No. :(6io:, ECHR :oo:-III.
8 Ibid, paragrapl 8.
, But see Plattform Arzte fur das Leben v. Austria, judgment of
: )une ,88, Series A No. ,, in wlicl Article , was said to
extend to tle members of an association of doctors opposed to
abortion.
belief are to be considered as amounting to a form of mani-
festation. Te Convention itself lists four particular forms
of manifestation: worslip, teacling, practice and observ-
ance. Te Court las linted on several occasions tlat tlis
is not necessarily a denitive list and as will be seen later, it
las interpreted Article , in a way wlicl oers protection
to interests wlicl lie beyond tlis illustrative list. Nevertle-
less, it will usually be necessary for applicants to be able
to demonstrate tlat tlere las been an impediment placed
upon tleir ability to engage in one of tlese activities in
order to claim tlat tleir freedom to manifest tleir religion
or belief las been infringed.
One dicult issue concerns wlo is to decide wletler a
form of action is to be understood, in a prima facie sense,
as a manifestation of a religion or belief at all. If tle appli-
cant asserts tlat sometling tley lave done was as a result
of tleir religion or belief, is it open to tle Court simply to
deny tlat tlis is so on tle basis of its scrutiny of tle facts,
or is it bound to accept tle applicants subjective clarac-
terisation of tleir actions: Tis question arose in tle case
of Valsamis v. Greece, in wlicl a clild was excluded from
sclool as a result of ler parents refusal to allow ler to
participate in a parade commemorating tle national day of
independence. Te parents argued tlat tle parade com-
memorated war (and was preceded by an ocial Mass and
followed by military parades) and so was incompatible witl
tle familys pacist beliefs as members of tle )elovals
Witnesses. Te Court (as lad tle Commission before it) re-
jected tlis contention, arguing tlat it can discern notling,
eitler in tle purposes of tle parade or in tle arrangements
for it, wlicl could oend tle applicants pacist convic-
tions...
ro
and concluded tlat tle obligation to take part in
tle sclool parade was not sucl as to oend ler parents
religious convictions.
rr
Tis approacl is problematic since it
is dicult to see on wlat basis a Court can determine tlat
a person does not understand an issue to be of a religious
nature if tley say tlat, for tlem, it is.
Tis does not mean tlat an applicants claracterisation of
an act as a manifestation must be accepted in an unques-
tioning faslion. For example, if a person is seeking to take
o Valsamis v. Greece, judgment of 8 December ,,6, Reports of
Judgments and Decisions ,,6-VI, paragrapl .
Ibid, paragrapl ;.
The Convention lists
four particular forms of
manifestation: worship,
teaching, practice and
observance. It will usually
be necessary for someone
to be able to demonstrate
that there has been an
impediment placed upon
his or her ability to engage
in one of these activities.
advantage of a privilege or exemption wlicl is available
only to adlerents of a particular religious tradition or belief
system it may be necessary to consider wletler tlat person
genuinely is an adlerent of tle belief system in question.
ra

However, particular care needs to be taken wlen adopting
sucl an approacl in tle context of tle wearing of religious
symbols. Compelling a person to prove tleir religious al-
legiance miglt indeed become oppressive, and will almost
certainly be oppressive if tle tle privileges in question are
intimately connected witl tle practice of ones belief. It
could be argued tlat by wearing a religious symbol a person
is not only acting in a faslion wlicl tley consider to be
consonant witl tleir belief system, but tlat tlat very act
itself demonstrates tleir bona des adlerence to tlat belief
and so no furtler exploration of tle question is necessary.
However, tle need to determine wletler a particular form
of jewellery, clotling, etc is indeed being worn as a religious
symbol or in a religious sense or wletler it is being worn
for otler reasons, sucl as comfort, social conformity, fasl-
ion, or even disrespect of religion may indeed need to
be explored in order to determine wletler an issue arises
under Article ,.
Even wlen it is clear tlat tle activity in question is to be
taken as a bona de form of manifestation by tle appli-
cant, tlis does not necessarily mean tlat it is to be taken
as a form of manifestation for the purposes of Article . For
example, tle Arrowsmith case concerned a pacist wlo lad
been distributing leaets outside an army camp wlicl gave
information on low soldiers miglt claim exemption from
serving in a situation of conict. As far as tle applicant
: For example, in tle case of Kosteski v. the former Yugoslav Republic
of Macedonia, op.cit., tle applicant argued tlat lis forum inter-
num lad been violated by lis being required to prove lis status
as a practising Muslim before le could take advantage of tle riglt
enjoyed by all Muslims in tle former Yugoslav Republic of Mac-
edonia to absent limself from work in order to attend a religious
festival. Te Court accepted tlat tle notion of tle state sitting
in judgement on tle state of a citizens inner and personal beliefs
is ablorrent. However, it went on to say tlat it is not oppressive
or in fundamental conict witl freedom of conscience to require
some level of substantiation wlen tle claim concerns a privilege
or entitlement not commonly available (para ,). Tis reects
tle approacl taken in cases concerning conscientious objection
to military service, and it is obviously appropriate to conrm tlat
tlose claiming to be manifesting a belief are doing so bona des.
was concerned, sle was engaged in tle practice of pacism
and as sucl ler actions fell witlin tle protective reacl of
Article ,. Te Commission took tle view tlat wlilst tle
manifestation of pacism was indeed protected by Article ,
tle distribution of leaets sucl as tlose at issue in tle case
in land was not. It accepted tlat tle applicant lad been
motivated by ler pacist beliefs wlen sle distributed tlem
but it did not tlink tlat tlis amounted to a manifestation,
observing tlat it is true tlat public declarations proclaim-
ing generally tle idea of pacism and urging tle acceptance
of a commitment to non-violence may be considered as
a normal and recognised manifestation of pacist belief.
However, wlen tle actions of individuals do not actually
express tle belief concerned tley cannot be considered to
be as sucl protected by Article ,().
r
In consequence, and
in a passage still regularly cited by tle Court, tle Commis-
sion concluded tlat tle term practice as employed in
Article ,() does not cover eacl act wlicl is motivated or
inuenced by a religion or a belief .
r(
Tus not all activities
undertaken wlicl are motivated or inspired by a belief are
necessarily protected since not only miglt tley not be relat-
ed to tle forum internum and tle splere of inner convic-
tion but tley may also be considered not to amount to a
manifestation of tlat belief for tle purposes of Article ,().
(c) When is an interference attributable to the state?
An additional question is wletler a persons inability to
manifest tleir religion or belief is sometling for wlicl tle
state is responsible, or wletler it is largely attributable to
cloices wlicl tlose individuals lave freely made for tlem-
selves. For example, a number of cases lave considered tle
question of wletler employees may be required to work on
days or at times wlicl prevent tlem from fullling tleir re-
ligious obligations. In tle case of X v. the United Kingdom
r

it was decided tlat tlere lad been no interference witl
tle freedom of religion or belief by requiring tle appli-
cant, a Muslim teacler, to work at a given time on a Friday
afternoon wlen le believed le ouglt to be at prayer since
le remained free to renegotiate lis contract, or clange lis
Arrowsmith v. the United Kingdom, op. cit., paragrapl ;.
( Ibid.
, X. v. the United Kingdom, No. 86oi;8, Commission decision of
: Marcl ,8, Decisions and Reports ::, p. :;, paragrapl 6.
employment altogetler. His inability to attend prayers was
a result of lis cloosing to accept a full time position as a
teacler ratler tlan as a result of a restriction placed upon
lim. A similar approacl was taken in tle case of Konttinen
v. Finland,
r6
wlere tle applicant was a Seventl Day Ad-
ventist wlo objected to being required to work after sunset
on a Friday on tle grounds tlat tlis was forbidden by lis
religious beliefs, and also (inter alia) in Stedman v. the
United Kingdom,
r;
wlere tle applicants employer, follow-
ing a clange in national legislation, required tle applicant
to work on Sunday. In all tlese cases tlere was no doubt
tlat tle applicants were eitler unable to engage in acts of
worslip or to engage in a form of religious observance but
tle Court (or Commission) was of tle view tlat tlis was
attributable not to tle actions of tle state but to cloices
made voluntarily by tle applicants. In slort, tle solution
to tleir diculties lay in tleir own lands. If tley wisled to
prioritise tleir religious observance above tleir contractual
commitments as employees, tley could do so by clanging
tle nature of tleir employment.
Similar outcomes lave been reacled in dierent contexts.
For example, in Pichon and Sajous v. France,
r8
tle appli-
cants were plarmacists wlo objected on religious grounds
from being required to sell contraceptives. Te Court took
tle view tlat since tley were free to take up a dierent
profession tlere was no interference witl tleir freedom to
manifest tleir religion.
r,
In tle case of Chaare Shalom Ve
Tsedek v. France
ao
tle Court decided tlat tlere lad been no
interference witl tle riglt of tle applicant association in
prolibiting its members from engaging in ritual slauglter
of animals in order to ensure tlat tle meat produced was
religiously acceptable since sucl meat could be acquired in
and imported from Belgium. Finally, in Kala v. Turkey, in
wlicl a military judge was dismissed from lis position on
6 Konttinen v. Finland, No. :(,(,i,(, Commission decision of
December ,,6, Decisions and Reports 8;, p. 68.
; Stedman v. the United Kingdom, No. :,o;i,,, Commission deci-
sion of , April ,,;, Decisions and Reports 8;- A, p. o(.
8 Pichon and Sajous v. France (dec.), No. (,8,i,,, ECHR :oo-X.
, Te Court miglt also lave considered wletler tleir desire not to
sell contraceptives amounted to a manifestation at all, or wletler
it was a stance wlicl was merely motivated by tleir beliefs.
:o Chaare Shalom Ve Tsedek v. France [CC], No. :;(;i,,, ECHR
:ooo-VII.
The Court will examine
whether a persons inability
to manifest their religion or
belief is something for which
the state is responsible, or
whether it is largely attribut-
able to choices which those
individuals have freely made
for themselves.
account of lis memberslip of a religious community wlose
views were, in tle view of tle military autlorities, inimical
to tle proper functioning of a judge, tle Court concluded
tlat His compulsory retirement was not an interference
witl lis freedom of conscience, religion or belief but was
intended to remove from tle military legal service a person
wlo lad manifested lis lack of loyalty to tle foundation
of tle Turkisl nation, namely secularism, wlicl it was tle
task of tle armed forces to guarantee.
ar
Tus wlilst tle Convention protects tle freedom to mani-
fest ones religion or belief, applicants may be expected to
take wlatever steps are available to tlem to ensure tlat
tley can act in accordance witl tleir beliefs even if tlis
is at some personal cost to tlem before tle Court will
conclude tlat an interference attributable to tle state las
occurred. Tere are, lowever, limits to tlis approacl. If tle
burdens placed on an applicant are particularly onerous,
tley miglt amount to a form of pressure wlicl aects tleir
very ability to adlere to tle pattern of tlouglt, conscience
and religion of tleir cloice. Sucl a degree of pressure could
amount to a form of coercion wlicl would be incompat-
ible witl tle requirements of Article ,(). Similarly, it may
be tlat if tle burdens placed on adlerents of some beliefs
are greater tlan tlose placed on otlers, and tlere is no
objective justication for tlis dierence, tlen questions
of discrimination in tle enjoyment of tle riglt will come
into play and may result in a violation of tle Article. Tis
will be considered in greater detail later, but tle approacl
can be illustrated at tlis point by looking at tle decision
of tle European Commission in tle case of Choudhury v.
the United Kingdom
aa
in wlicl an application concerning
tle failure of tle blasplemy laws in tle United Kingdom to
extend protection to tle Islamic faitl was declared inad-
missible. Te Commission was of tle view tlat tle inability
of tle applicant to ensure tlat criminal proceedings were
brouglt against tle autlor and publisler of a book wlicl,
in lis view, amounted to a scurrilous attack on lis religion
did not give rise to a claim under Article , since tlere lad
been no interference witl lis ability to manifest lis religion
or belief. Moreover, it tlouglt tlat no issue was raised in
: Kala v. Turkey, judgment of )uly ,,;, Reports of Judgments and
Decisions ,,;-IV, paragrapls :, and o.
:: Choudhury v. the United Kingdom, no. ;(,i,o, Commission
decision of , Marcl ,,, unreported.
Whilst the Convention
protects the freedom to
manifest ones religion or
belief, applicants may be
expected to take whatever
steps are available to them
to ensure that they can act
in accordance with their
beliefs.
relation to Article ( of tle Convention (non discrimination
in tle enjoyment of a Convention riglt) since notling lad
occurred tlat fell witlin tle scope of tle riglts recognised
by Article ,. As will be seen below, tle Court subsequently
adopted a dierent approacl to tlis latter point in tle case
of Otto-Preminger Institut v. Austria, in so far as it de-
cided tlat tle Article , riglts miglt indeed be violated by
provocative portrayals of objects of religious veneration
and tlat a state may legitimately consider it necessary to
take measures aimed at repressing certain forms of conduct
... judged incompatible witl tle respect for tle freedom
of tlouglt, conscience and religion of otlers.
a
In liglt of
tlis, it would seem tlat tle failure of tle state to oer tle
same degree of legal protection against tle provocative
portrayal of objects of religious veneration to one form of
religion or belief as it oers to anotler would now amount
to a violation of tle Convention. Tis too las important
consequences as regards tle wearing of religious symbols,
and will be explored furtler below.
(C) Restrictions upon the Manifestation of Religion or Belief
Altlougl actions wlicl amount to a manifestation of a
religion are belief are protected under Article ,(), tley may
be subject to limitations from two sources. First, Article
, permits states to derogate from tleir obligations under
a number of Convention articles, including Article ,, in
times of war or otler public emergencies tlreatening tle
life of tle nation but only to tle extent strictly required by
tle exigencies of tle situation. In tleory, tlis could be taken
to suggest tlat in sucl emergency situations tle state miglt
be able to act in a manner wlicl even impinged upon tle
forum internum for example, seeking to persuade or
coerce individuals to abandon forms of tlinking or belief
wlicl were considered inimical to national security. How-
ever, given tle primarily personal and private scope of tle
forum internum, it is dicult to see low sucl intrusions
could ever be strictly required.
a(
Altlougl Article , does
: Otto-Preminger Institut v. Austria, judgment of :o September
,,(, Series A No. :,,-A, paragrapl (;.
:( Moreover, Article of tle Convention prolibits inluman or
degrading treatment in absolute terms and is not subject to tle
limitations of Article , and it is dicult to see low activities
capable of coercing a clange in private patterns of tlouglt would
not fall foul of tlis provision.
provide a possible means of restricting tle manifestation
of religion or belief to a degree beyond tlat permitted by
Article ,(:) no state las yet considered tlere to be a need of
sucl a nature in tle few emergency situations wlicl lave
given rise to notices of derogation and so it is unnecessary
to do more tlan note tlat tlis is a tleoretical possibility.
Te second and most signicant source of limitation is Ar-
ticle ,(:). In common witl similar clauses in tle Conven-
tion, it requires tlat limitations be botl prescribed by law
and necessary in a democratic society, but witl tle state
enjoying a certain margin of appreciation, eacl of wlicl
will be briey considered.
(a) Prescribed by law
Te essence of tle prescribed by law requirement is cap-
tured in two ideas: rst, tlat tle law must be adequately
accessible, tle citizen must be able to lave an indication
tlat is adequate in tle circumstances and secondly, tlat
tle law must be formulated witl sucient precision to en-
able tle citizen to regulate lis conduct: le must be able to
foresee to a degree tlat is reasonable in tle circumstances,
tle consequences wlicl a given action may entail.
a
Botl
of tlese criteria call for a reasonableness-based assessment
wlicl can only be determined on tle facts of eacl case,
altlougl tle Court in Hasan and Chaush v. Bulgaria made
it clear tlat, in combination, tlis means tlat in matters
concerning fundamental riglts it would be contrary to tle
rule of law ... for a legal discretion granted to tle executive
to be expressed in terms of an unfettered power.
a6

Hasan and Chaush was one of tle rst cases concerning
Article , in wlicl it was decided tlat a restriction lad not
been prescribed by law. Te provisions at issue permitted
tle autlorities to replace tle closen leader of tle Muslim
community in Bulgaria witl a leader of tleir cloice. Te
Court noted tlat tle relevant law does not provide for any
substantive criteria on tle basis of wlicl [tle autlorities]
register denominations and clanges of tleir leaderslip
:, Sunday Times v. tle United Kingdom (No. ), judgment of :6
April ,;,, Series A No. o, paragrapl (,.
:6 Hasan and Chaush v. Bulgaria [CC], No. o,8,i,6, paragrapl 8(,
ECHR :ooo-XI.
Article 9(2) is the most
signifcant source of
possible restrictions on
freedom to manifest ones
religion or beliefs. Limita-
tions must be prescribed
by law, follow a legitimate
aim and be necessary in a
democratic society.
and tlat tlere were no procedural safeguards ... against
arbitrary exercise of tle discretion left to tle executive.
a;
A
furtler illustration of tlis approacl is provided by Kuznets-
ov v. Russia, in wlicl tle Clair of a regional Human Riglts
Commission broke up a meeting of a group of )elovals
Witnesses in a faslion wlicl was attributable to tle state
(in tlat sle lad purported to be acting in ler ocial capac-
ity, and was accompanied by uniformed police ocers). Te
Court noted tlat tle legal basis for breaking up a religious
event conducted on tle premises lawfully rented for tlat
purpose was conspicuously lacking and so lad not been
prescribed by law.
a8
(b) Necessary in a democratic society
Once it las been determined tlat a restriction las been
prescribed by law for tle purposes of Article ,(:), it is
tlen necessary to determine wletler it is necessary in a
democratic society. Te Court las often stressed tlat tle
freedom of tlouglt, conscience and religion is one of tle
foundations of a democratic society and tle necessity of
any restriction will depend upon wletler it fulls a number
of requirements.
Te rst is tlat tle restriction pursues a legitimate aim as
set out in article ,(:), tlese being public safety, tle protec-
tion of public order, lealtl or morals and tle protection of
tle riglts and freedoms of otlers. Tougl important, tlis
is not a dicult lurdle to surmount.
a,
Te second, and arguably more critical question, is wletler
tle nature of tle interference is proportionate to tle legiti-
mate aim wlicl is being pursued, since it is tlis wlicl will
determine wletler tle interference could be considered as
necessary. Te European Commission said tlat tle neces-
:; Ibid, paragrapl 8,.
:8 Kuznetsov v. Russia, No. 8(io:, paragrapl ;(, )anuary :oo;.
:, For example, in Casimiro v. Luxembourg (dec.), no. ((888i,8, :;
April ,,,, tle Court decided in a case brouglt by lis parents
tlat requiring a clild wlo was a Seventl Day Adventist to attend
state sclooling on a Saturday, tleir religious day of rest, could be
justied on tle basis tlat it was aimed at securing tle riglts and
freedoms of otlers, in tlat case, tleir own clilds riglt to educa-
tion.
sity test cannot be applied in absolute terms but requires
tle assessment of various factors. Sucl factors include tle
nature of tle riglt involved, tle degree of interference, i.e.
wletler it was proportionate to tle legitimate aim pursued,
tle nature of tle public interest and tle degree to wlicl
it requires protection in tle circumstances of tle case.
o

Tis, tlen, sets up a complex factual matrix wlicl las to
be applied by tle Court wlen assessing tle necessity of an
interference.
(c) The margin of appreciation
It is at tlis point tlat tle doctrine of tle margin of ap-
preciation comes into play. Te rationale for tle margin
of appreciation was set out in tle case of Handyside v. the
United Kingdom in tle following terms:
r
By reason of tleir direct and continuous contact witl tle vi-
tal forces or tleir countries, state autlorities are in principle
in a better position tlan tle international judge to give an
opinion on tle exact content of tlese requirements as well
as on tle necessity of a restriction or penalty intended to
meet tlem.
However, tle Court las made it clear tlat tle margin of
appreciation goes land in land witl European oversiglt
and tlat tle breadtl of tle margin of appreciation accorded
to states will vary depending on tle riglts and interests at
stake, and tlat is very mucl a question for tle Court itself
to decide. In some areas, tle Court las decided tlat very
little, if any margin of appreciation is given to states. Tis
is particularly true as regards matters in wlicl it considers
tlere to be a pan-European consensus. However, tlere is
no sucl consensus as regards Article ,. In tle case of Otto-
Preminger Institut v. Austria tle Court said tlat it is not
possible to discern tlrouglout Europe a uniform concep-
tion of tle signicance of religion in society: even witlin
a single country sucl conceptions may vary.
a
Te Court
sees tlis as an area in wlicl tlere is considerable variation
o See X and the Church of Scientology v. Sweden, No ;8o,i;;, Com-
mission decision of , May ,;,, Decisions and Reports 6, p. 68.
Handyside v. the United Kingdom, judgment of ; December ,;6,
Series A No. :(, paragrapl (8.
: Otto-Preminger Institut v. Austria, op.cit., paragrapl ,6.
in practice and, in consequence, it grants states a relatively
broad margin of appreciation. Tus in tle case of Leyla
ahin v. Turkey concerning tle wearing of leadscarves by
students in universities in Turkey tle Court said Wlere
questions concerning tle relationslip between state and
religions are at stake, on wlicl opinion in a democratic
society may reasonably dier widely, tle role of tle national
decision making body must be given special importance ...
Rules in tlis splere will consequently vary from one coun-
try to anotler according to national traditions .... Accord-
ingly tle cloice of tle extent and form sucl regulations
slould take must inevitably be left up to a point to tle state
concerned, as it will depend on tle domestic context.
It cannot be overemplasised, lowever, tlat tlis does not

give tle state an unfettered discretion to determine wletl-
er a restriction is proportionate to tle aim pursued. It las
been persuasively argued tlat tle margin of appreciation
is a second order principle and tlat tle state is constrained
by an overarcling primary principle of ensuring tlat tlere
is a priority to riglts
(
and tle Court itself las stressed
tlat altlougl tle state enjoys considerable leeway it does
so only up to a point. Not only is tle national assessment
subject to European scrutiny in order to ensure tlat it
does indeed meet tle requirements of proportionality on
tle facts of tle case, but it is always open to tle Court to
narrow tlat margin slould a more general consensus on
tle relationslip between tle state and tle manifestation of
religion or belief emerge. In tle meanwlile, it also follows
from tlis tlat dierent responses to similar situations will
be acceptable witlin tle Convention framework, providing
tlat tley properly reect a balancing up on tle particular
issues in tle contexts in wlicl tley emerge. Tis means
tlat tle decisions of tle Court in relation to Article ,(:)
must be treated witl extreme caution: for example, just
because a restriction on tle wearing of a religious symbol
las been upleld in one case does not mean tlat a similar
restriction will be upleld in anotler, wlere tle context may
be very dierent.
Leyla ahin v. Turkey [CC], No. ((;;(i,8, paragrapl o,, ECHR
:oo,- XI.
( See S Creer, Te European Convention on Human Rights: Achieve-
ments, Problems and Prospects (Cambridge University Press,
:oo6), pp. :o-:.
Where questions concerning
the relationship between
state and religions are at
stake, on which opinion in
a democratic society may
reasonably difer widely, the
role of the national decision-
making body must be given
special importance. How-
ever, this does not give the
state an unfettered discre-
tion to determine whether a
restriction is proportionate
to the aim pursued.
(D) The Education of Children
Te place of religion in tle educational system raises many
dicult and delicate questions.
Clildren, as autonomous individuals, enjoy tle freedom of
religion or belief in tleir own riglt, as do adults. However,
given tle special interests of parents and legal guardians re-
garding tle religious and plilosoplical upbringing of tleir
clildren, tle riglts of tle clild in tle splere of education
are often exercised by parents in tleir own riglt ratler tlan
in tle name of tle clild. Tus Article : of tle First Protocol
to tle European Convention provides tlat:
No person slall be denied tle riglt to education. In tle
exercise of any functions wlicl it assumes in relation to
education and to teacling, tle state slall respect tle riglt of
parents to ensure sucl education and teacling in conformity
witl tleir own religious and plilosoplical convictions.
Of course, tlere will come an age at wlicl clildren may
seek to assert tleir own riglts in tlis regard, and one can
expect tlat tle riglts enjoyed by tle parents regarding
tle education of tleir clildren in accordance witl tleir
religious or plilosoplical convictions will transfer to tle
clildren tlemselves in a faslion commensurate witl tleir
evolving capacities.
As tle clild matures, tle nature of tle claim clanges from
tle perspective of tle freedom of religion or belief, since
clildren do not lave any greater riglts tlan anyone else
to be slielded from teacling not in accordance witl tleir
own religious or plilosoplical convictions. Terefore,
tleir claims must be assessed in accordance witl tle more
general approacl of ensuring tlat tle state, tlrougl its
teaclers, does not take undue advantage of tle position
tlat it enjoys vis--vis pupils to inuence tleir views in an
inappropriate faslion.
A number of denitional questions need to be briey
considered. Article : of tle Protocol refers to parental,
religious or plilosoplical convictions wlereas Article , of
tle Convention refers to religion or belief . Te meaning of
tlis was explored in tle case of Campbell and Cosans v. the
United Kingdom. As las already been seen, tle Court took
tle view tlat tle word convictions was to be equated witl
The Freedom of Thought, Conscience and Religion: an Introduction
belief , botl requiring a certain level of cogency, serious-
ness, colesion and importance, tlus dierentiating tlem
from mere ideas or opinions.
However, it is only sucl

convictions (or beliefs) wlicl are religious or plilosopli-
cal in nature wlicl attract tle protection of tle Article.
Te Court las never dened tle word religion, but it las
esled out its understanding of wlat is meant by pliloso-
ply. In Campbell and Cosans tle Court accepted tlat tle
word plilosoply bears numerous meanings: it is used to
allude to a fully edged system of tlouglt or, ratler loosely,
to views on more or less trivial matters. However, it tlouglt
tlat neitler of tlese two extremes can be adopted for
tle purposes of interpreting Article : and concluded tlat
Plilosoplical Convictions in tle present context denotes
... sucl convictions as are wortly of respect in a democrat-
ic society and are not incompatible witl luman dignity.
6

Tus tle Court adopts a ratler subjective approacl to tlis
important question.
A second point concerns wlat is meant by respect for
parental convictions. Te Court las said tlat Te verb
respect means more tlan acknowledge or take into
account ... in addition to a primarily negative undertaking,
it implies some positive obligation on tle part of tle state.
;

Article : does not mean tlat a state is bound to provide a
system of education tlat accords witl parental beliefs, but
it does mean tlat parents can object to tle nature and con-
tent of tle education and teacling given to tleir clildren
wlere religious instruction is predicated upon, intended
to or las tle eect of projecting tle trutl (or falsity) of a
particular set of beliefs.
Wlilst states lave considerable latitude witl respect
to providing religious instruction, tley may not seek to
encourage pupils in a particular worldview tlrougl tle
educational system against tle wisles of tle pupils parents.
In consequence, parents must lave tle riglt to witldraw
tleir clildren from sucl forms of teacling. As tle Court
reiterated in Folger v. Norway, tle state, in fullling tle
functions assumed by it in regards to education and teacl-
ing, must take care tlat information or knowledge included
, Campbell and Cosans v. the United Kingdom, op.cit., paragrapl 6.
6 Idem.
; Idem. See also Folger and Others v. Norway [CC], No. ,(;:io:,
paragrapl 8( (c), ECHR :oo;.
in tle curriculum is conveyed in an objective, critical and
pluralistic manner. Te state is forbidden to pursue an aim
of indoctrination tlat miglt be considered as not respect-
ing parents religious and plilosoplical convictions. Tat is
tle limit tlat must not be exceeded.
8
It must also be stressed tlat Article : is not only of rel-
evance to tle teacling of religion or plilosoplical convic-
tions in sclools: it also applies to teacling about religions
and plilosoplies in sclools. Moreover, as tle Court
emplasised in tle case of Kjeldsen, Busk Madsen and Ped-
ersen v. Denmark,
,
no distinction is to be drawn between
religious instruction and otler subjects: tle state is re-
quired to respect parental convictions, wletler religious or
plilosoplical, tlrouglout tle entire education programme.
Indeed, illustrative examples of decisions already drawn
on in tlis Manual slow tlat tle scope of tlis riglt extends
beyond tle educational curricula itself and concerns mat-
ters of educational organisation sucl as teacling on loly
days
(o
and participation in sclool parades.
(r
It also goes fur-
tler to include tle etlos of tle educational establislment
itself and tlis raises important issues regarding religious
symbols wlicl will be explored later.
8 Folger and Others v. Norway [CC], ibid., paragrapl 8( (l).
, Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of
; December ,;6, Series A No. :, paragrapl ,.
(o Casimiro v. Luxembourg (dec.), op.cit.
( Valsamis v. Greece, op.cit.
The state is required to
respect parental convic-
tions, whether religious or
philosophical, throughout
the entire education
programme.
The Key Concepts Emerging
from the Practice of the
European Court of Human
Rights
III
Te previous Section set out tle structural elements of Ar-
ticle , of tle Convention and Article : of tle First Protocol
in a fairly sclematic faslion witl tle intention of intro-
ducing tle basic building blocks of tle legal framework
relevant for and preparatory to a detailed consideration of
luman riglts approacles to tle wearing of religious sym-
bols. It also souglt to illustrate low tle Court las inter-
preted tlese elements. Important tlougl tlis is, it is even
more important to understand low tlis framework applies
in practice. Once it las been decided tlat tlere las been
an interference witl a bona de manifestation of religion or
belief, tle essential question becomes wletler tlat inter-
ference is justied in accordance witl Article ,(:). Tis,
ultimately, calls for a balancing of tle riglts and interests
at stake and altlougl tle state enjoys a generous margin
of appreciation in tlis regard, it is not unfettered. Wlilst
tlere may be no common European conception of tle role
of religion and belief in public life to inform tle outcome,
a number of key concepts lave emerged wlicl, reecting
core Convention values, provide clear benclmarks against
wlicl to assess tle legitimacy of any restriction. Moreover,
approacling Article , from tlis conceptually orientated
faslion las lad tle additional eect of broadening its scope
to embrace fact situations wlicl miglt not otlerwise easily
t witlin tle ratler rigid, structural approacl outlined
above. In consequence, tlese concepts miglt be said to
represent tle spirit ratler tlan tle letter of Article , and
tley lave proven to be particularly signicant to issues
regarding religious symbols.
Moreover, tle Court las indicated in tle case of Kokkinakis
v. Greece tlat wlilst tlere may not be a common European
approacl sucient to narrow tle breadtl of tle margin of
appreciation, tlere is a general underlying principle drawn
from general convention values wlicl must be adlered to,
tlis being tlat:
Whilst there may be no
common European concep-
tion of the role of religion
and belief in public life
to inform the outcome, a
number of key concepts
have emerged: (a) the prin-
ciple of respect; (b) that of
individual and community
autonomy; and (c) non-dis-
crimination in the enjoy-
ment of rights.
As enslrined in Article ,, freedom of tlouglt, conscience
and religion is one of tle foundations of a democratic
society witlin tle meaning of tle Convention. It is, in its
religious dimension, one of tle most vital elements tlat go to
make up tle identity of believers and tleir conception of life,
but it is also a precious asset for atleists, agnostics, sceptics
and tle unconcerned. Te pluralism indissociable from a
democratic society, wlicl las been dearly won over tle
centuries, depends on it.
(a
Tis key statement is routinely reproduced in almost all
cases concerning Article , and provides tle essential
background to tle principles identied in tlis section, and
wlicl botl ow from and furtler rene its implications.
In tlis statement, tle Court acknowledges tle signicance
of tle freedom of tlouglt, conscience and religion to tle
individual and tle role it plays in tleir sense of personal
identity, it also recognises low important it is to ensure
tlat tlere is space for tlis to be recognised if tlere is to be
a ourisling of a democratic society. At tle same time, it
underlines tle need to ensure tlat a democratic society is
open and inclusive by liglliglting tle importance of plural-
ism. Ratler tlan calling for a balancing between tle public
and tle private, it calls for a balancing of interests witlin tle
public splere tlat reects botl tle importance of riglts
enslrined in Article , to botl tle individual and to demo-
cratic society, witl tle implication tlat wlen tlese interests
appear to conict, a resolution is to be souglt wlicl seeks
to maximise botl, to tle extent tlat tlis is possible.
(A) The Principle of Respect
Perlaps tle most important of all tle principles to lave
emerged from tle Convention case-law las been tle
principle of respect. Respect for parental wisles in mat-
ters concerning tle education of tleir clildren is expressly
referred to in Article : of tle First Protocol but it is not di-
rectly referred to in Article , of tle Convention. Its central-
ity to tle practical operation of tle Convention framework
was, lowever, made clear in tle very rst case wlicl was
decided by tle Court on tle basis of Article ,, tlis being
Kokkinakis v. Greece. Tis case concerned a member of tle
(: Kokkinakis v. Greece, judgment of :, May ,,, Series A No. :6o-
A, paragrapl .
The Key Concepts Emerging from the Practice of the ECtHR 7
)elovals Witnesses wlo lad been convicted for unlaw-
ful proselytism, a criminal oence under Creek law. At tle
leart of tle case lay tle question of balancing tle riglt of
tle applicant to practice lis religion by seeking to slare lis
faitl witl otlers against tle riglt of tle state to intervene
to protect otlers from unwanted exposure to lis point of
view. Altlougl on tle facts of tle case it was decided tlat
tle interference lad not been slown to be justied, tle
Court argued tlat it may be necessary to place restrictions
on tlis freedom in order to reconcile tle interests of tle
various groups and to ensure tlat everyones beliefs are
respected.
(
Te key, tlen, is to ensure tlat wlen exercis-
ing its responsibilities tle state adopts an approacl wlicl
reects tle degree of respect wlicl is to be accorded to
tle beliefs in question, wlicl may of course be religious or
non-religious in nature.
Tis approacl was conrmed in tle subsequent case of
Larissis and others v. Greece, in wlicl tle applicants wlo
were members of a Pentecostal Clurcl and were ocers
in tle Creek Air Force were convicted of various oences
connected witl tleir attempts to convert botl a number of
junior airmen and a number of civilians (in tleir free time)
to tleir beliefs. Te Court noted tlat wlilst tle autlorities
were justied in taking some measures to protect tle lower
ranking airmen from improper pressure
((
tle applicants
conviction for seeking to convert tle civilians could not
be justied on tle basis of Article ,(:) since tle civilians
wlom tle applicants attempted to convert were not subject
to tle pressure and constraints of tle same kind as tle
airmen.
(
Botl tle Kokkinakis and tle Larissis cases slow
tlat in a democratic society it is necessary to ensure tlat
believers are able to manifest tleir beliefs by bringing tlem
to tle attention of otlers, and by trying to persuade otlers
to tleir point of view or else tle exclange of ideas wlicl
underpins a vibrant and plural democracy would be un-
dermined. At tle same time, botl cases slow tlat tle state
pursues a legitimate aim wlen it seeks to limit proselytis-
ing activities wlicl run tle risk of subjecting individuals to
pressure wlicl tley miglt nd it dicult to resist. As tle
Court said wlen distinguisling between tle situation of tle
( Ibid, paragrapl .
(( Larissis and others v. Greece, judgment of :( February ,,8,
Reports of Judgments and Decisions, ,,8-I, paragrapl ,(.
(, Ibid, paragrapl ,,.
airmen from tlat of tle civilians in tle Larissis case, it is of
decisive signicance tlat tle civilians wlom tle applicants
attempted to convert were not subject to pressure and con-
straints of tle same kind as tle airmen.
(6

Tis miglt be loosely claracterised as meaning tlat tle
role of tle state in sucl situations is to ensure tlat tlere
is a level playing eld between all concerned, tle one
side free to present tleir points of view, tle otler to reject
tlem. More precisely, it miglt be said tlat in order to
justify a restriction being placed upon a person wlo seeks
to present tleir views to anotler wlat is needed is a nexus
or relationslip tlat places one party in a position in wlicl
tley are unable, or feel unable, to exercise an appropriate
degree of tlouglt or reection before adopting or express-
ing adlerence to tle belief placed before tlem, or tlat
tleir decision to adopt or express sucl adlerence ows not
from an assessment or response to tle belief itself but from
a perception tlat it would be prudent to agree, or to be
seen to be agreeing, witl tle person wlo presented tlose
beliefs to tlem. Te underlying principle is tlat of ensuring
respect for tle beliefs of otlers, given eect in tlis instance
by ensuring tlat tlose wlo enjoy superiority over otlers,
educationally, socially, politically or in any otler faslion,
are not unduly advantaged in an exclange of ideas.
Te idea of respect is even more evident in tlose cases
wlicl lave concerned tle belaviour of non-believers
wlicl las caused oence to believers. Te leading case
remains tlat of Otto-Preminger-Institut v. Austria wlicl
concerned tle seizure and forfeiture of a lm considered to
be blasplemous under Austrian law. In a case brouglt un-
der Article o (freedom of expression) tle Commission lad
considered tle lm to be predominantly satirical in nature
and felt its prolibition excludes any clance to discuss tle
message of tle lm. Te Court, lowever, saw matters dier-
ently. It tlouglt tlat tle state las a responsibility to ensure
tle peaceful enjoyment of tle riglt guaranteed under
Article , to tle lolders of tlose beliefs and doctrines but at
tle same time it noted tlat Tose wlo cloose to exercise
tle freedom to manifest tleir religion... cannot reasonably
expect to be exempt from all criticism. Tey must toler-
ate and accept tle denial by otlers of tleir religious beliefs
and even tle propagation by otlers of doctrines lostile to
(6 Idem.
The Key Concepts Emerging from the Practice of the ECtHR
tleir faitl.
(;
Tis must indeed be true, or else tle riglts of
believers to manifest and propagate tleir beliefs, as set out
in tle Kokkinakis and Larissis cases would be undermined.
Indeed, quoting tle Handyside case, tle Court recalled tlat
tle freedom of expression embraced ideas wlicl slock,
oend or disturb tle state or any sector of tle population,
tlis being one of tle demands of maintaining a plural,
tolerant and broadminded society.
(8
However, tle Court,
quoting Kokkinakis, also observed tlat a state may legiti-
mately consider it necessary to take measures aimed at
repressing certain forms of conduct, including tle impart-
ing of information and ideas, judgement incompatible witl
tle respect for tle freedom of tlouglt, conscience and
religions of otlers and in a passage now regularly found in
its jurisprudence, tle Court tlen went on to say tlat:
Te respect for tle religious feelings of believers as guaran-
teed by Article , can legitimately be tlouglt to lave been
violated by provocative portrayals of objects of religious
veneration: and sucl portrayals can be regarded as mali-
cious violation of tle spirit of tolerance, wlicl must also be a
feature of democratic society.
(,
Indeed, in tle case of Wingrove v. the United Kingdom,
wlicl also concerned a refusal to autlorise tle release of
an allegedly blasplemous lm, tle Court not only reiter-
ated tlis but spoke of a duty to avoid as far as possible an
expression tlat is, in regard to objects of veneration, gratui-
tously oensive to otlers and profanatory,
o
a view wlicl it
conrmed in tle later case of Murphy v. Ireland.
r
Te idea tlat tle state is under a duty to ensure tlat tle
deeply leld views of believers (botl religious and non-re-
ligious) are botl tolerated and respected las tle practical
eect of expanding tle scope of Article , quite consider-
ably. If one were to limit oneself to tle ratler meclanical
(; Otto-Preminger-Institut v. Austria, op.cit., paragrapl (;.
(8 Ibid, paragrapl (,, quoting Handyside v. the United Kingdom,
op.cit., paragrapl (,.
(, Otto-Preminger Institut v. Austria, op.cit., paragrapl (;.
,o Wingrove v. the United Kingdom, judgement of :, November ,,,,
Reports of Judgments and Decisions ,,6-V, paragrapl ,: (empla-
sis added).
, Murphy v. Ireland, No. ((;,i,8, paragrapl 6,, ECHR :oo-XI
(extracts).
Believers and non-believers
are entitled to the respect
of those who hold to
other forms of belief even
though, of course, there may
be profound disagreement
regarding the content of
those views.
approacl to Article , wlicl was outlined in Section II of
tlis Manual (but wlicl still forms tle basis of its inter-
pretation and application) it miglt be argued tlat since
even tle most virulent comments or tle most oensive
portrayals of tle beliefs of otlers do not prevent tlem from
continuing to lold to tleir beliefs and to manifest tlem in
worslip, teacling, practice and observance, tlere lad been
no interference witl tleir riglts at all. However, tle Court
las wisely understood tlat it is dicult to maintain to ones
beliefs and practices in a lostile environment since, as was
said in tle Clambers judgment in tle case of Refah Partisi
v. Turkey, wlere tle oending conduct reacles a ligl level
of insult and comes close to a negation of tle freedom of
religion of otlers it loses tle riglt to societys tolerance.
a
In conclusion, we can see tlat tlrougl tlese cases tle
Court las developed tle principle of respect as a key fac-
tor wlen balancing tle respective interests wlicl are en-
gaged by Article ,. Accordingly, believers and non-believers
are entitled to tle respect of tlose wlo lold to otler forms
of belief even tlougl, of course, tlere may be profound
disagreement regarding tle content of tlose views since
respect for tle believer does not necessarily entail respect
for wlat is believed. Tis principle is to be taken into
account wlen tle necessity of any interference witl tle
manifestation of a religion or belief is being assessed. Tere
is, lowever, a reciprocal obligation on believers to slow
respect for tle beliefs (religious or non-religious) of otlers
in wlat tley do and say. Finally, it slould be noted tlat
wlilst tle principle of respect guides tle assessment of tle
Court in weigling up tle proportionality of an interference
witl tle enjoyment of tle riglt, tle adoption of wlat tle
Court las itself described as a ratler open-ended notion

las tle practical eect of reinforcing tle need for European
supervision of tle margin of appreciation tlat is accorded
to states.
(B) The Principle of Individual and Community Autonomy
Altlougl less well developed tlan tle principle of respect,
tle Convention also acknowledges a principle of autonomy,
,: Refah Partisi (the Welfare Party) and Otlers v. Turkey,
Nos. ((oi,8, ((:i,8, ((i,8 and (((i,8, paragrapl ;,,
)uly :oo.
, Murphy v. Ireland, op.cit., paragrapl 68.
wlicl itself must be understood in tle liglt of tle dual na-
ture of Article , as botl an individual and as a community
riglt. In its early practice, tle Commission suggested tlat
tle freedom of tlouglt, conscience and religion could only
be enjoyed in an individual capacity and only by a luman
person but tlis position las been abandoned over time. Te
rst step was in tle case of X and the Church of Scien-
tology v. Sweden wlicl conrmed tlat religious organisa-
tions could bring claims on belalf of tleir members, bun-
dling up (so to speak) tleir members individual claims.
(

Tis was tlen furtler developed so tlat it is now fully
accepted tlat legal entities are tlemselves entitled to tle
protection of Article , in tleir own riglt, as is slown by tle
pletlora of cases brouglt by religious organisations clal-
lenging state decision-making concerning tleir legal status.
Tus in tle case of tle Metropolitan Church of Bessarabia
and Others v. Moldova, in wlicl tle applicant was clal-
lenging tle refusal of tle state to register tlem as a religious
entity under tle relevant domestic law, tle Court said:
...since religious communities traditionally exist in tle form
of organised structures, Article , must be interpreted in
tle liglt of Article of tle Convention, wlicl safeguards
associative life against unjustied state interference. Seen
in tlat perspective, tle riglt of believers to freedom of
religion, wlicl includes tle riglt to manifest ones religion
in community witl otlers, encompasses tle expectation tlat
believers will be allowed to associate freely, witlout arbitrary
state intervention.
It underlined tlis by going on to emplasise tlat tle

autonomous existence of religious communities is indis-
pensable for pluralism in a democratic society and is tlus
an issue at tle very leart of tle protection wlicl Article
, aords.
6
Te Court las adopted tle same approacl in
cases brouglt under Article , in wlicl tle applicant bod-
ies claim tlat it is tleir freedom of association wlicl las
been breacled, ratler tlan tleir freedom of religion. Te
close synergy between tlese articles is now well establisled,
and in tle case of tle Moscow Branch of the Salvation Army
v. Russia, tle Court, after quoting tle above passage from
,( X and the Church of Scientology v. Sweden, op.cit.
,, Metropolitan Church of Bessarabia and Others v. Moldova, No.
(,;oi,,, paragrapl 8, ECHR :oo-XII.
,6 Idem.
tle Metropolitan Clurcl case, conrmed tlat Wlile in tle
contest of Article tle Court las often referred to tle es-
sential role played by political parties in ensuring pluralism
and democracy, associations formed for otler purposes,
including tlose proclaiming or teacling religion, are also
important to tle proper functioning of democracy.
;
As associations witl legal personality, religious and non-
religious organisations witlin tle scope of Article , not
only enjoy tle protection of Article (freedom of associa-
tion) but also enjoy all otler convention riglts applicable to
legal entities, sucl as tle riglt of access to a court in Canea
Catholic Church v. Greece
8
and tle freedom of expression
in Murphy v. Ireland.
,
)ust as individuals are entitled to lave tleir splere of inner
beliefs tleir forum internum respected absolutely, so
likewise is tlere a degree of enlanced protection for wlat
miglt be called tle forum internum of tle associative life
of an organisation. Tus tle state is not to intrude into wlat
are properly considered to be essentially internal issues. )ust
as it is not for tle state to pass judgement on tle beliefs of
an individual, tle state is not to take a view on tle beliefs of
tle community: tle Court las frequently said tlat tle riglt
to freedom of religion ... excludes any discretion on tle part
of tle state to determine wletler religious beliefs or tle
means used to express sucl beliefs are legitimate .
Likewise, tle state is not to intrude into matters of internal
governance. For example, in a number of cases tle Court
las made it clear tlat tle state slould not seek to inuence
internal decision-making concerning matters of leaderslip.
In tle case of Hasan and Chaush v. Bulgaria tle applicants
claimed tlat tle state lad wrongfully involved itself in a
dispute between two rivals for tle leaderslip of tle Muslim
Community in Bulgaria by refusing to register a breakaway
group, tlus lending its support to tle claim of anotler to
tle leaderslip of tle wlole community. As tle Court said,
Teir eect was to favour one faction of tle Muslim com-
munity... Te acts of tle autlorities operated... to deprive
,; Moscow Branch of the Salvation Army v. Russia, No. ;:88io,
paragrapl 6, ECHR :oo6-XI.
,8 Canea Catholic Church v. Greece, judgment of 6 December ,,;,
Reports of Judgments and Decisions ,,;-VIII, paragrapl (.
,, Murphy v. Ireland, op.cit., paragrapl 6.
The right to freedom of
religion excludes any
discretion on the part of
the state to determine
whether religious beliefs
or the means used to
express such beliefs are
legitimate. Likewise, the
state is not to intrude into
matters of internal govern-
ance of faith communities.
tle excluded leaderslip of any possibility of continuing to
represent at least part of tle Muslim community and of
managing its aairs according to tle will of tlat part of tle
community. Tere was tlerefore an interference witl tle
internal organisation of tle Muslim religious community
and witl tle applicants riglt to freedom of religion as
protected by Article , of tle Convention.
6o
In tle sub-
sequent case of tle Supreme Holy Council of the Muslim
Community v. Bulgaria tle Court again stressed tlat state
measures favouring a particular leader or group in a divided
religious community... would constitute an infringement of
tle freedom of religion.
6r
Similarly, tle state is not to intervene in otler situations
of doctrinal or internal dispute witlin a belief commu-
nity and in tlose instances in wlicl an applicant believes
tlat tle clurcl or organisation is itself acting in a faslion
wlicl las infringed tleir freedom of religion or belief, tle
Court las stressed tlat all tlat is needed is to ensure tlat
tle person is free to leave slould tley wisl to do so as
in tle case of Knudsen v. Norway
6a
wlere a minister of tle
state clurcl objected to lis being dismissed for refusing to
carry out certain functions required of lim because of lis
opposition to tle Norwegian abortion laws. However, tlis
does not mean tlat tle communal life of tle organisation is
beyond scrutiny. )ust as tle state is entitled to satisfy itself
tlat individuals genuinely lold tle beliefs wlicl tley claim,
so may tle state seek to satisfy itself tlat tle patterns of
belief wlicl a religious organisation claims to espouse are
tlose wlicl it actually espouses: tle Court las acknowl-
edged tlat an associations programme may in certain
cases conceal objectives and intentions dierent from tle
ones it proclaims. To verify tlat it does not, tle content of
tle programme must be compared witl tle actions of tle
associations leaders and tle positions tley embrace.
6
It
follows from tlis tlat it is open to tle Court to determine
wletler tlose beliefs qualify for tle protection of Article ,
(or Article ), in botl cases tle decision ultimately turning
on wletler tlose beliefs are consonant witl tle principles
6o Hasan and Chaush v. Bulgaria [CC], op.cit., paragrapl 8:.
6 Supreme Holy Council of the Muslim Community v. Bulgaria,
No. ,o:i,;, paragrapl ;;, 6 December :oo(.
6: Knudsen v. Norway, no o(,i8(, Commission decision of 8 Marcl
,8,, Decisions and Reports (, p. :(;.
6 Moscow Branch of the Salvation Army v. Russia, op.cit., paragrapl ,.
of democratic governance wlicl tle Court las clearly iden-
tied as underpinning tle Convention system.
Te relevance of tlis dual dimension for tle wearing of
religious symbols ows from tle fact tlat Article , ex-
pressly acknowledges tlat tle individuals riglt of freedom
of religion and belief is to be enjoyed in community witl
otlers and botl in public and in private. As tle case-law
of tle Court slows, tle community element of tle riglt
goes beyond tle mere coming togetler of individuals in
tle collective enjoyment of tleir individual freedom and
extends to tle recognition of an associative life wlicl is
to be protected as a necessary expression of tlat freedom.
Witlin tlat religious associative life, individuals will be
bound by its rules and tle primary protection for tleir
riglt to freedom of tlouglt, conscience and religion lies in
tleir being able to leave and disassociate tlemselves from
tle community. Te state is to avoid entering into religious
or doctrinal questions witlin tlat associative life, otler
tlan to test tlem for compatibility witl tle foundational
convention values of democratic governance, pluralism
and tolerance. It is not for tle Court to comment on tle
practices of tle religious community, altlougl tley may of
course be limited in accordance witl Article ,(:).
In tle case of the Moscow Branch of the Salvation Army v.
Russia tle Court made it clear tlat tle need to respect tle
internal aairs of a religious organisation extended not only
to its organisational structures but also to tle clotling worn
by its members. It said tlat It is undisputable tlat for tle
members of tle applicant brancl, using ranks similar to
tlose used in tle military and wearing uniforms were par-
ticular ways of organising tle internal life of tleir religious
community and manifesting tle Salvation Armys religious
beliefs.
6(

In tlis way, tle internal and external and tle individual and
tle community combine to permit a religious organisation
to adopt particular forms of religious symbols and clotling,
and for its members to manifest tleir beliefs by wearing
tlem in tle public space as well as in tle private. Tougl
always subject to proportionate restriction on legitimate
grounds, tle case-law of tle Court supports a riglt for
individuals and associations to be able to freely determine
6( Ibid, paragrapl ,:.
wlat symbols and wlat clotling tleir beliefs require of
tlem and a prima facie riglt to display tlem botl in public
and in private. Tis view is furtler reinforced by tle way in
wlicl Article , expressly links worslip, practice teacling
and observance witl public as well as private acts. Te idea
of observance, in particular, includes forms of religiously
inspired acts sucl as parades, etc, wlicl are intrinsically
public in tleir nature. Moreover, tle clear recognition
tlat activities intended to encourage a clange of religion
tlrougl teacling, proclamation, public worslip, etc, are
also legitimate forms of manifesting beliefs once again
clearly locates tle practice of religion in an open as op-
posed to a closed environment. Civen tlat organisations
are entitled to determine tle proper forms of organisation
and of dress for adlerents, it would amount to an intrusion
into tle internal life of tle organisation, as well as being a
limitation of tle freedom of tle individual to manifest tleir
religion or belief, to seek to restrict tle public display of re-
ligious symbols and clotling in situations wlicl are clearly
foreseen by tle Convention as laving an intrinsically public
dimension.
(C) Non-discrimination in the Enjoyment of the Rights
A tlird principle is tlat of non-discrimination and is
derived from a number of separate, tlougl interlocking,
strands wlicl will be looked at in turn.
(a) ECHR Article 14
Te rst of tlese strands is Article ( of tle Convention
wlicl provides tlat:
Te enjoyment of tle riglts and freedoms set fortl in tlis
Convention slall be secured witlout discrimination on any
ground sucl as sex, race, colour, language, religion, political
or otler opinion, national or social origin, association witl a
national minority, property, birtl or otler status.
As is well known, Article ( las no independent existence
and las eect solely in relation to tle enjoyment of tle
riglts and freedoms safeguarded by tlese provisions. At
tle same time, it is not necessary for tlere to lave been
an actual breacl of anotler Convention provision in order
for tlere to lave been a breacl of Article (: otlerwise, all
tlat Article ( would do is add a second violation to tle
rst, ratler tlan extending tle scope of protection. Wlat
is needed is a nexus between tle alleged discriminatory act
and a Convention riglt. As tle Court put it in Abdulaziz,
Cabales and Balkandali v. the United Kingdom, Altlougl
tle application of Article ( does not necessarily presup-
pose a breacl of tlose provisions and to tlis extent is au-
tonomous tlere can be no room for its application unless
tle facts at issue fall witlin tle ambit of one or more of tle
latter.
6
It may well be tlat tle facts not only suggest tlat
tlere las been a violation of a substantive riglt but tlat tle
violation was also discriminatory in nature and so miglt
also give rise to a violation of Article ( in conjunction witl
Article ,. In many cases in wlicl tlere las been botl a
violation of Article , and discriminatory treatment, tlere is
sometling of a cloice as to wletler tle gist of tle case is
so closely connected witl one of tlese aspects tlat a nd-
ing of a violation under tlat one leading renders it unnec-
essary to consider tle otler. It is not necessary to pursue
tlis furtler lere, but tlere will also be cases in wlicl botl
elements are so in evidence as to justify nding a violation
under botl tle substantive Article and Article (.
Te rst question to be asked, tlen, is wletler tle alleged
discriminatory belaviour falls witlin tle ambit witlin
tle scope of a Convention riglt. If it does, tle next ques-
tion is wletler a similarly situated group las been treated
in a more favourable faslion. Finally, if tlis is indeed tle
case, tle nal question to be asked is wletler tlis dier-
ence in treatment is justied: tle Court las said tlat a dif-
ference in treatment is discriminatory if it las no objective
and reasonable justication, tlat is if it does not pursue a
legitimate aim or if tlere is not a reasonable relationslip
of proportionality between tle means employed and tle
aim souglt to be realised.
As regards tle freedom of religion or belief, tle rst question
becomes wletler tle matter at issue is an exercise of tlat
freedom. In tle early case of Choudhury v. the United King-
dom, tle Commission decided tlat tle freedom to manifest
religion or belief in worslip, teacling, practice or observance
did not embrace a riglt to see actions brouglt for blas-
6, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judg-
ment of :8 May ,8,, Series A No. ,(, paragrapl ;.
When it comes to discrimi-
nation regarding the free-
dom of religion or beliefs,
there can be no room for
the application of Article
14 unless the facts at issue
fall within the ambit of
Article 9.
6 # III
7
plemy and so even tlougl sucl actions were only available
in respect of Anglican Clristianity and not in respect of tle
Islamic faitl, sucl discrimination fell outside tle ambit of
Article , witl tle result tlat tlere could be no question of its
giving rise to an issue under Article (.
66
If lowever, tle state
oers a protection wlicl goes beyond wlat tle minimum
requirements of substantive riglts require, tlen tlat too
comes witlin tle ambit of tle riglt. It las already been seen
tlat tle requirement to oer minimum protection to tle
sensibilities of believers means tlat sucl protections as are
oered slould be non-discriminatory in nature.
Te emergence of tle principle of respect as a substantive
aspect of tle riglt, as outlined above, takes tlis furtler and
suggests tlat any state-sponsored activities wlicl potentially
cast a negative liglt over a particular form of religion or be-
lief would fall witlin tle ambit of Article , and so need to be
justied in order to avoid violating Article (. Te Case of
Members of the Gldani Congregation of Jehovahs Witnesses
and Others v. Georgia illustrates tle coming togetler of
tlese principles. In tlat case tle supporters of a radical
priest of tle Ortlodox Clurcl in Ceorgia, Fatler Basil, lad
been involved in violently disrupting a service of worslip
by members of tle )elovals Witnesses, resulting, inter alia,
in serious plysical injuries to a considerable number of tle
congregation. Te evidence slowed tlat tle autlorities lad
not intervened to try to prevent tlis from occurring, nor
lad tley properly investigated or taken action against tlose
involved, and so tle responsibility of tle state was engaged.
Similar incidents lad subsequently occurred, involving otler
faitl communities as well as tle )elovals Witnesses. Tere
was no doubt tlat tle facts slowed tlere to lave been a
violation of Article ,, since tlere lad been an unjustied
interference witl tle exercise of tle freedom of religion. Te
Court framed tlat nding in tle following faslion:
tle Court considers tlat, tlrougl tleir inactivity, tle
relevant autlorities failed in tleir duty to take tle necessary
measures to ensure tlat tle group of Ortlodox extremists
led by Fatler Basil tolerated tle existence of tle applicants
religious community and enabled tlem to exercise freely
tleir riglts to freedom of religion.
6;
66 Choudhury v. the United Kingdom, op.cit.
6; Case of Members of the Gldani Congregation of Jehovahs Witnes-
ses and Others v. Georgia, No. ;,6io, paragrapl (, ECHR :oo;.
7 The Key Concepts Emerging from the Practice of the ECtHR
We slall return to tle question of tle duty of tle state later,
but at tlis point it slould be stressed tlat tle nding of a
violation was presented in terms of tle states overall failure
to maintain a climate of toleration and of respect (tlougl
tlat word was not used) for tle riglts of otlers. Against
tlis background, tlere will almost always be a powerful
argument concerning tle discriminatory belaviour of tle
state in tle exercise of its obligation under tle Convention
and, in tlis case, tle Court did indeed decide tlat tlere lad
been a violation of Article ( in conjunction witl Article ,
in addition to tle violation of Article , itself. In a passage
wortl quoting at lengtl, tle Court said tlat:
(o. ... in tle instant case, tle refusal by tle police to inter-
vene promptly at tle scene of tle incident in order to
protect tle applicants ... from acts of religiously-moti-
vated violence, and tle subsequent indierence slown
towards tle applicants by tle relevant autlorities,
was to a large extent tle corollary of tle applicants
religious convictions. Te government las not adduced
any counter-arguments. In tle Courts opinion, tle
comments and attitude of tle state employees wlo
were alerted about tle attack or subsequently instruct-
ed to conduct tle relevant investigation cannot be
considered compatible witl tle principle of equality of
every person before tle law ... No justication for tlis
discriminatory treatment in respect of tle applicants
las been put forward by tle government.
(. Te Court considers tlat tle negligent attitude towards
extremely serious unlawful acts, slown by tle police
and tle investigation autlorities by tle police on ac-
count of tle applicants faitl, enabled Fatler Basil to
continue to advocate latred tlrougl tle media and to
pursue acts of religiously-motivated violence, accom-
panied by lis supporters, wlile alleging tlat tle latter
enjoyed tle unocial support of tle autlorities ... .
Not only was tlere a clear violation of Article , but tlere
was also sucient evidence to support tle conclusion tlat
tle state, tlrougl its tacit support for tle violence used
against tle applicants, was treating tlem in a discrimina-
tory faslion.
(b) Positive obligations
A second strand of development concerning non-discrimi-
nation in tle enjoyment of tle freedom of religion or belief
concerns positive obligations and botl ows from, and
is illustrated by, tle judgment of tle Court in tle case of
Tlimmenos v. Greece. Tis case concerned a )elovals Wit-
ness wlo lad been convicted because of lis unwillingness
to wear a military uniform and serve in tle armed forces.
Some years later le passed tle examinations necessary to
become a Clartered Accountant but was barred from be-
ing able to do so because of lis laving tlis prior criminal
conviction. Te government argued tlat tlis was a rule
of general application wlicl served tle public interest
wlereas tle applicant argued tlat tle law ouglt to distin-
guisl between tlose convicted of oences committed as a
result of tleir manifesting tleir religion or belief and tlose
convicted of otler oences. Te Court pointed out tlat
wlilst a violation of Article ( occurred wlen states treat
dierently persons in analogous situations witlout provid-
ing an objective and reasonable justication, it was not
limited to sucl situations. It said tlat:
Te riglt not to be discriminated against in tle enjoy-
ment of tle riglts guaranteed under tle Convention is also
violated wlen states witlout an objective and reasonable
justication fail to treat dierently persons wlose situations
are signicantly dierent.
68
Te Court felt tlat tlose convicted for oences related to
tle manifestation of tleir beliefs miglt indeed be a dierent
situation from tlose convicted for otler reasons. It argued
tlat a conviction for refusing on religious or plilosopli-
cal grounds to wear tle military uniform cannot imply
any dislonesty or moral turpitude likely to undermine tle
oenders ability to exercise tlis profession. Excluding tle
applicant on tle ground tlat le was an unt person was
not, tlerefore, justied.
6,
Te signicance of tlis approacl for questions concerning
tle wearing of religious symbols is evident. Slould tlere be
a generalised restriction on tle wearing of any particular
68 Tlimmenos v. Greece [CC], No. (6,i,;, paragrapl ((, ECHR
:ooo-IV.
6, Ibid, paragrapl (;.
type of clotling or symbol wlicl is of religious signicance
to some but not to all, it will raise tle question of wletler
tle state is responsible for a failure to treat dierently per-
sons wlose situations are signicantly dierent. Slould tlis
be tle case, tlere will be a violation of Article ( in con-
junction witl Article , unless an objective and reasonable
justication can be given.
(c) Protocol No. 12
A tlird strand of development relates to Protocol No. : to
tle European Convention on Human Riglts
;o
wlicl was
adopted in :ooo and entered into force on April :oo,. At
tle time of writing, ; of tle (; member states of tle Coun-
cil of Europe lave ratied tle Protocol and so are bound
by it, tlese being: Albania, Andorra, Armenia, Bosnia and
Herzegovina, Croatia, Cyprus, Finland, Ceorgia, Luxem-
bourg, Montenegro, Netlerlands, Romania, San Marino,
Serbia, Spain, tle Former Yugoslav Republic of Macedonia
and Ukraine. A furtler :o states lave signed but lave yet to
ratify tle Protocol.
Article of tle Protocol provides tlat:
. Te enjoyment of any riglt set fortl by law slall be
secured witlout discrimination on any ground sucl as
sex, race, colour, language, religion, political or otler
opinion, national or social origin, association witl a
national minority, property, birtl or otler status.
:. No one slall be discriminated against by any public
autlority on any ground sucl as tlose mentioned in
paragrapl .
Tis moves beyond Article ( by removing tle need for a
nexus witl anotler substantive convention riglt, replac-
ing tlis witl a riglt not to be subjected to discrimination
in tle enjoyment of any riglt set fortl by law, wletler
national or international in origins. Te idea of set fortl by
law embraces not only legislative provisions but also riglts
inferred from obligations under national law, by tle exer-
cise of discretionary powers or by otler acts of omissions
attributable to a public autlority.
;o ETS No. ;;.
To tle extent tlat tle wearing of religious clotling and
symbols represents a manifestation of religion and so is
witlin tle ambit of Article , sucl discrimination is already
addressed by Article ( and so Protocol : adds little to tle
protections wlicl are already in place. However, Protocol
: does oer a residual protection for unusual situations
wlicl, for wlatever reason, miglt fall beyond tle ambit of
Article ,. In sucl circumstances, tlis more general equal-
ity provision would come into play and oer a degree of
protection to religious believers against discriminatory
treatment wlicl was attributable to public autlorities in
ratifying states.
(D) Living Instrument
A nal overarcling principle slould also be liglliglted and
altlougl it may be dealt witl briey it is of considerable
importance. Te Court las stressed on numerous occa-
sions tlat tle Convention is a living instrument wlicl is
to be interpreted in tle liglt of present day conditions. As
a result tle Court cannot but be inuenced by tle develop-
ments and commonly accepted standards operable witlin
member states of tle Council of Europe and, drawing on
tlis approacl, tle Court las said tlat tle increasingly ligl
standard being required in tle area of tle protection of lu-
man riglts and fundamental liberties correspondingly and
inevitably requires greater rmness in assessing breacles of
tle fundamental values of democratic societies.
;r
Two important points ow from tlis. First, tle Convention
is not static and tlrougl tle processes of interpretation
and application it is capable of evolving to address newly
emergent concerns or to reappraise existing approacles in
tle liglt of new insiglts into tle nature of tle democratic
societies wlicl it addresses. Secondly, and as an inevitable
corollary, tle approacles set out in tle Courts jurispru-
dence are not immutable but are open to re-appraisal over
time. Tis is particularly true in areas in wlicl states lave
traditionally enjoyed a considerable margin of apprecia-
tion, including tle freedom of religion or belief, since tle
emergence of a common European approacl would lave
tle eect of limiting its breadtl and be a precursor to tle
emergence of a Convention-wide normative approacl. It
; Selmouni v. France [CC], No. :,8oi,(, paragrapl o, ECHR
,,,-V.
The Court has stressed on
numerous occasions that
the Convention is a living
instrument which is to be
interpreted in the light of
present-day conditions.
may well be tlat tle living instrument principal miglt
provide a conceptual means tlrougl wlicl tle Convention
can respond to tle increasing interest in, and importance
of, tle manifestation of religion and belief witlin tle demo-
cratic societies of tle Council of Europe.
The Role and Responsibilities
of the State
IV
Te previous section identied a number of key conceptual
principles wlicl underpin tle approacl to tle freedom
of religion and belief witlin tle Convention framework.
Some of tlese were specic to Article ,, otlers were of a
more general nature but wlicl lad a particular relevance
for tle realisation of tlat freedom. Tis section continues
tle tleme of identifying core strands in tle approacl of tle
Court to tle freedom of religion or belief but, ratler tlan
looking at more general and overarcling principles, it looks
at low tlose principles work tlemselves out in practice.
(A) Neutrality and Impartiality
Tere las been a subtle, but signicant, slift in tle percep-
tion of tle role of tle state in relation to tle freedom of
religion and belief. We lave already seen tlat tle individual
riglts approacl outlined in section II las been developed
by tle principle of respect and by tle recognition of tle
communal aspects of tle riglts as outlined in Section III.
Wlilst approacling Article , from tle perspective of an
individual works well wlen an individual is clallenging tle
manner in wlicl tle state las acted in relation to tleir per-
sonal enjoyment of a particular aspect of tlat riglt, it works
less well in situations in wlicl wlat is really at stake is tle
approacl of tle state eitler to religion or belief generally
or to a particular form of religion or belief. In recent times,
tle Court las increasingly been called on to consider cases
of tlis nature and, indeed, a number of tle cases previously
considered from tle perspective of tle individual miglt in
reality be best viewed from tlis more community-orien-
tated perspective.
Te response of tle Court, ecloing tle principle of respect,
las been to call on tle state to act in a neutral faslion as
between religions and as between religious and non-
This section identifes core
strands in the approach of
the Court to the freedom
of religion or belief by ex-
amining how the following
principles work in practice:
(a) neutrality and impartial-
ity; (b) fostering pluralism
and tolerance; (c) protecting
the rights and freedoms of
others.
religious forms of belief. In Hasan and Chaush v. Bulgaria,
for example, it emplasised tlat tle role of tle state was not
to take sides by endorsing one religious community at tle
expense of anotler but was to act in an even-landed fasl-
ion, concluding tlat a failure by tle autlorities to remain
neutral in tle exercise of tleir powers ... must lead to tle
conclusion tlat tle state interfered witl tle believers free-
dom to manifest tleir religion.
r
Unsurprisingly, tle same
approacl las been taken in cases wlicl lave been brouglt
not by individuals but by religious communities tlemselves.
Te leading case remains tlat of tle Metropolitan Church
of Bessarabia v. Moldova, wlicl concerned tle refusal of
tle Moldovan autlorities to grant ocial recognition to tle
applicant Clurcl wlicl lad tle practical eect of making
botl tle Clurcl as an organisation and tle religious activi-
ties of its adlerents unlawful. Te Court said tlat in exer-
cising its regulatory power in tlis splere and in its relations
witl tle various religions, denominations and beliefs, tle
state las a duty to remain neutral and impartial.
a
Te duty
to remain neutral and impartial las now been re-iterated
on many occasions and it is clear tlat any evidence tlat tle
state las failed to act in sucl a faslion in its dealings witl
religious bodies will require justication under Article ,(:)
if it is not to amount to a breacl of Article ,.
Tis duty las a number of facets, perlaps tle most impor-
tant being tlat tle states duty of neutrality and impartiality
is incompatible witl any power on tle states part to assess
tle legitimacy of religious beliefs or tle ways in wlicl tley
are expressed.
Tis is of particular importance for issues

concerning religious clotling and religious symbols since it
underscores tle need to permit individuals tlemselves to
determine wletler tle wearing or display of any particu-
lar items is of religious signicance to tlem, and tle state
will be in breacl of its duty of neutrality and impartiality
if it imposes its interpretation of tleir signicance at tle
expense of tlat of tle believer.
So far, tle case-law considered las establisled tlat tle
state must remain neutral and impartial wlen it las deal-
Hasan and Chaush v. Bulgaria [CC], op.cit., paragrapl ;8.
: Metropolitan Church of Bessarabia and Others v. Moldova, op.cit.,
paragrapl 6.
Manoussakis and Others v. Greece, judgment of :6 September
,,6, Reports of Judgments and Decisions ,,6-IV, para. (;.
The response of the Court,
echoing the principle
of respect, has been to
call on the state to act
in a neutral fashion as
between religions and
as between religious and
non-religious forms of
belief.
The Role and Responsibilities of the State
ings witl religious believers and religious organisations. In
some cases, lowever, tle Court las gone even furtler and
suggested tlat states are under a variety of positive obliga-
tions witl regard to tle freedom of religion and belief and
in tle case of Leyla ahin v. Turkey it referred to its laving
frequently emplasised tle states role as tle neutral and
impartial organiser of tle exercise of various religions,
faitls and beliefs.
(
)ust as cases sucl as Kokkinakis and Lar-
risis emplasised tlat tle role of tle state was to ensure tlat
tlere was a level playing eld between believers (and be-
tween believers and non-believers), so it was tlat in Leyla
ahin tle Court saw tle role of tle state as being to ensure
tlat tlis was tle case ab initio by emplasising tle states
responsibilities as tle neutral and impartial organiser of tle
exercise of religions, faitls and beliefs. Tis puts tle state in
a ratler dierent position from tlat wlicl it previously oc-
cupied. Ratler tlan being required to ensure tlat it remains
neutral and impartial in its dealings witl religions and witl
believers, its role becomes one of ensuring tlat religious life
witlin tle state is neutral and impartial, wlicl is a subtle,
but important dierence.
Tis can play out in a number of dierent ways. Neutral-
ity and impartiality means tlat tle state ouglt to lave no
interest in internal organisational issues unless tle results
are sucl as to endanger tle public order, lealtl, morals or
tle riglts and freedoms of otlers. Slort of tlis, it slould
refrain from engaging witl internal aairs, tlus reinforc-
ing tle principle of autonomy. For example, in tle case of
Serif v. Greece, tle Court said tlat in democratic societies
tle state does not need to take measures to ensure tlat reli-
gious communities are brouglt under a unied leaderslip.

Sucl an approacl casts tle role of tle state as a facilita-
tor of organisational and individual religious freedom. It is
enougl if believers are able to function as a religious com-
munity witlin tle state in a manner wlicl allows tlem,
as believers, tle riglts wlicl ow from Article , and, of
course, Article ( of tle ECHR.
An alternative model and tle now dominant model
takes a dierent approacl, emplasising tle responsibility
of tle state to ensure tle realisation of all convention riglts
and, drawing on tle key statement of principle in tle Kokki-
( Leyla ahin v. Turkey [CC], op.cit., paragrapl o;.
, Serif v. Greece, No. 8;8i,;, paragrapl ,:, ECHR ,,,-IX.
The states duty of neutrality
and impartiality is incom-
patible with any power on
the states part to assess the
legitimacy of religious beliefs
or the ways in which they
are expressed.
nakis case, emplasising tle need for tle freedom of religion
and belief to be seen and understood in tle broader context
of democratic society. In tle Kokkinakis case tle Court said
tlat tle freedom of tlouglt, conscience and religion is one
of tle foundations of a democratic society ... tle pluralism
indissociable from a democratic society ... depends on it. It
also said tlat in democratic societies ... it may be necessary
to place restrictions on tlis freedom in order to reconcile
tle interests of tle various groups and ensure tlat every-
ones beliefs are respected.
6
On tle one land, tlis oers a
recognition of tle public value of tle freedom of religion
and belief and means tlat wlen exercising its role as tle
neutral and impartial organiser of religious life tle state
does so in a faslion wlicl respects and reects tlis. On tle
otler land, it emplasises tle extent to wlicl it is legiti-
mate for tle state to allow tle broader needs of society to
impact upon tle activities of religious bodies and believers
in order to secure a proper balance between tle riglts of all
witlin tle broader community wlicl comprises tle demo-
cratic society as a wlole. Wlen combined witl tle newly
emergent responsibility of tle state, tle goals of neutrality
and impartiality become clear, tlese being tle fostering of
pluralism and tolerance and tle protection of tle riglts and
freedoms of otlers, botl of wlicl will now be looked at in
a little more detail.
(B) Fostering Pluralism and Tolerance
Te application of tle principles already identied will
lave tle practical eect of fostering a climate of plural-
ism and tolerance. If, for example, tle state is to remain
neutral in its dealings witl religious organisations and witl
believers, not express any preference for, or pass comment
upon, any particular form of belief, respect tle internal
autonomy of not only individuals but of belief communi-
ties as well (to tle extent tlat tlis is compatible witl tle
riglts and freedoms of otlers), ensure tlat tlere is a level
playing eld and, wlilst doing all of tlis, be animated by
an overarcling principle of respect for tle beliefs of otlers
tlen it is dicult to see low tlis can fail to lelp foster a
climate of pluralism and tolerance. However, tle Court sees
tle fostering of pluralism and tolerance as more tlan an
incidental outcome but as a goal wlicl is to be aclieved by
6 Kokkinakis v. Greece, op.cit., paragrapls and .
The Role and Responsibilities of the State 7
tle application of tle principles and approacles wlicl lave
already been identied.
Tis raises some dicult and delicate issues. Most religious
belief systems advance trutl claims wlicl are, in varying
degrees, absolutist in nature and reject at least elements of
tle validity of otlers. In addition, tle need to allow for tle
market place of ideas requires tlat tlere be exclanges of
views, expressions of beliefs, ideas and opinions and forms
of manifestation wlicl may be unwelcome and, perlaps,
oensive, to otlers. Tis is botl necessary for tle realisa-
tion of pluralism and tolerance yet at tle same time runs
tle risk of compromising it. We lave already seen tlat tle
Court expects believers to cope witl a fairly ligl degree
of clallenge to tleir systems of belief in tle pursuit of tle
more general goals of securing pluralism and tolerance: in
tle Otto-Preminger-Institut case, for example, tle Court
said tlat:
Tose wlo cloose to exercise tle freedom to manifest tleir
religion ... cannot reasonably expect to be exempt from all
criticism. Tey must tolerate and accept tle denial by otlers
of tleir religious beliefs and even tle propagation by otlers
of doctrines lostile to tleir faitl.
;
Wlilst respect for tle freedom of religion and belief can-
not require otlers to respect tle doctrines and teaclings
of faitl traditions otler tlan ones own (if any) it can, and
does, require tlat one be respectful of tlem. Te role of tle
state in sucl cases is to ensure tlat tle believer, or non-be-
liever, is able to continue to enjoy tleir convention riglts,
albeit tlat tley may be troubled or disturbed by wlat tley
see and lear around tlem. As tle Otto-Preminger-Institut
case itself suggests, it is only wlen tle manner in wlicl tle
views, ideas or opinions are expressed are akin to a mali-
cious violation of tle spirit of tolerance
8
tlat it is for tle
state to intervene.
Tis approacl las been reected in a variety of otler situa-
tions. For example, in tle case of Serif v. Greece tle appli-
cant argued tlat lis freedom of religion lad been violated
by lis being convicted of assuming tle functions of tle
leader of tle Muslim community in Rodopi, tle leaderslip
; Otto-Preminger Institut v. Austria, op.cit., paragrapl (;.
8 Ibid.
The role of the state is to
ensure that the believer,
or non-believer, is able to
continue to enjoy their
convention rights, albeit that
they may be troubled or
disturbed by what they see
and hear around them.
of wlicl was in dispute. Te Court said tlat Altlougl [it]
recognises tlat it is possible tlat tension is created in situ-
ations wlere a religious or any otler community becomes
divided, it considers tlat tlis is one of tle unavoidable
consequences of pluralism. Te role of tle autlorities in
sucl circumstances is not to remove tle cause of tension
by eliminating pluralism, but to ensure tlat tle competing
groups tolerate eacl otler.
,
Taken at face value, tlis ap-
proacl is not unproblematic since it suggests tlat tle state
is not only entitled but may be required to exercise a form
of oversiglt over tle internal life of religious communi-
ties in tle interests of ensuring pluralism and tolerance. At
tle same time, it is not tle role of tle state to step in and
sort out tle problem since doing so would not only fail
to respect tle principle of autonomy but would also fail to
demonstrate tle degree of neutrality and impartiality wlicl
tle state must slow in its dealings witl believers. Balancing
tlese concerns tle need to promote pluralism and toler-
ance wlilst respecting tle beliefs and autonomy (personal
and organisational) of otlers is a delicate task and can be
approacled in a number of ways.
For example, in tle case of tle Metropolitan Church of
Bessarabia v. Moldova tle government lad argued tlat by
recognizing tle applicant clurcl as a legal entity it would
be broadening tle rift witlin tle Ortlodox community
and tlat tle impartial response to tle situation would be
to encourage tle applicant clurcl to settle its dierences
witl tle already recognised clurcl from wlicl it wisles
to split.
ro
Te Court rejected tlis argument, saying tlat tle
states duty of neutrality ... is incompatible witl any power
... to assess tle legitimacy of religious beliefs, and requires
tle state to ensure tlat conicting groups tolerate eacl
otler, even wlen tley originated in tle same group. In
tle present case ... [by] taking tle view tlat tle new group
was not a new denomination and making its recognition
depend on tle will of an ecclesiastical autlority tlat lad
been recognised ... tle government failed to disclarge tleir
duty.
rr
One can see tle force of botl arguments. However,
tle former argument views tle role of tle state as being
ultimately passive in nature avoiding conduct wlicl gives
, Serif v. Greece, op.cit., paragrapl ,.
o Metropolitan Church of Bessarabia and Others v. Moldova, op.cit.,
paragrapl :.
Idem.
tle appearance of endorsing a particular form of religion or
belief, tle validity of wlicl is contested by otlers. Tis fails
to do justice to tle more activist approacl to tle promotion
of pluralism and tolerance wlicl tle Court las called for,
altlougl tlis too may operate in a variety of directions. In
tle Metropolitan Church case, tle promotion of pluralism
seems to lave been given enlanced weiglt wlen constru-
ing tle content of tle obligation to ensure tlat conicting
groups tolerate eacl otler and tle result seeks to support
tle presence of varied and diverse bodies of tlouglt co-
existing and interacting witl eacl otler witlin tle broader
political community. Tis miglt be contrasted witl tle case
of the Supreme Holy Council of the Muslim Community
v. Bulgaria, in wlicl tle Court placed more emplasis on
tle role of tle state as tle promoter of tolerance. In tlat
case tle Court, wlilst re-iterating tlat tle state slould
not favour a particular leader or faction witlin a divided
community, also commented tlat tle state was under a
constitutional duty to secure religious tolerance and peace-
ful relations between groups of believers (wlicl it did not
nd objectionable) and tlat ... disclarging it may require
engaging in mediation. Neutral mediation between groups
of believers would not in principle amount to state interfer-
ence witl tle believers riglts ..., altlougl tle state autlori-
ties must be cautious in tlis particularly delicate area.
ra
Tese comments relate to tle role of tle state in respect of
internal matters of religious organisations and tley suggest
tlat tle positive elements of tle states duty to promote
tolerance and pluralism may permit it to work alongside
sucl bodies in order to realise tlose objectives. In otler
words, neutrality and impartiality does not mean tlat tle
state must distance itself from religion and religious bodies.
On tle contrary, it suggests tlat tle state may engage witl
tlem on a non-partisan basis in order to assist in tle reali-
sation of tlese goals.
Tere are implications for tle wearing of religious symbols
wlicl ow from tlis more dynamic approacl to foster-
ing pluralism and tolerance. It las already been seen tlat
tle pursuit of pluralism means tlat believers may lave to
be exposed to ideas and arguments wlicl tley may nd
personally unpalatable. It also means tlat believers must
: Supreme Holy Council of the Muslim Community v. Bulgaria,
op.cit., paragrapl ;;.
accept tle legitimacy of tlere being a divergence of views
on matters of fundamental signicance to tlem witlin tle
broader society of wlicl tley form a part. Te pursuit of
tolerance implies tlat believers must accept tle legitimacy
of tlis diversity as a necessary consequence of tlere being
a ourisling democratic society and it falls to tle state to
ensure tlat tlis is tle case, limited only by wlat is neces-
sary to protect tle riglts and freedoms of otlers. Tis, of
course, works in botl directions and it is equally applicable
to non-believers wlo are faced witl tle manifestation of
forms of belief wlicl tley miglt nd unwelcome or unpal-
atable and wlicl miglt include tle presence of religious
symbols in tle public space. In sucl situations, tle same
goal of fostering pluralism and tolerance would apply and,
drawing on tle words on tle Court in Serif v. Greece (and
repeated on numerous occasions since) tle role of tle state
is not to remove tle cause of tension by eliminating plural-
ism, but tlrougl its actions seek to ensure toleration.
(C) Protecting the Rights and Freedoms of Others
In botl the Metropolitan Church of Bessarabia case and
in tle case of tle Members of the Gladini Congregation
cases tle Court made it clear tlat neutrality and imparti-
ality cannot be used to justify a failure to protect tle riglts
of believers under Article ,. Likewise, cases sucl as Otto-
Preminger-Institut v. Austria slow tlat tle need to foster
pluralism and tolerance cannot be used to justify sucl
failings eitler. Te point at wlicl tle limits of state absten-
tion in tle interests of neutrality and impartiality and state
intrusion in tle interests of fostering pluralism and toler-
ance are re-connected is in tle overarcling need to protect
tle riglts and freedoms of otlers, believers and non-believ-
ers, botl witlin religious bodies and witlin tle broader
political community. Tis, of course, takes us back to tle
limitations on tle enjoyment of tle riglt permitted on tle
basis of Article ,(:) and wlicl can only be determined on a
case-by-case basis.
Later sections of tlis Manual will look in detail at low tle
Court las conducted tlis exercise as regards tle wearing
of religious symbols. It is, lowever, appropriate to identify
at tlis point a particular aspect of tlis balancing exercise
wlicl, altlougl usually addressed witlin tle framework of
Article ,(:) as a legitimate ground of restriction, is better
The point at which the
limits of state absten-
tion in the interests of
neutrality and impartial-
ity and state intrusion in
the interests of fostering
pluralism and tolerance
are re-connected is in
the overarching need to
protect the rights and
freedoms of others, believ-
ers and non-believers.
The Role and Responsibilities of the State 1
seen as a reection of a more overarcling goal tlis being
tle protection of tle general riglts and freedoms of otl-
ers tlrougl tle preservation of tle democratic nature of
tle state. Tis sets tle outer limits of wlat neutrality and
impartiality and tle promotion of pluralism and tolerance
miglt require of a state and of a society. We lave already
noted tlat Article , permits states to derogate from Con-
vention riglts in times of national emergency tlreatening
tle life of tle nation, and tlat Article ; requires tlat con-
vention riglts are not used to undermine tle riglts of otl-
ers. Our concern at tlis point is witl sets of circumstances
in wlicl it is argued tlat, by tleir actions, individuals or
organisations are negatively impacting upon tle democratic
framework wlicl tle Convention is to uplold.
In tle case of tle Metropolitan Church of Bessarabia v.
Moldova tle government argued tlat its refusal to register
tle applicant clurcl was justied on tle grounds of pre-
serving tle territorial integrity of tle state, maintaining tlat
recognition would revive old Russo-Romanian rivalries
witlin tle population, tlus endangering social stability and
even Moldovas territorial integrity.
r
Te Court accepted
tlat tlis was a legitimate aim for tle purposes of Article
,(:) in tlat it souglt to protect public order and public
safety, altlougl it decided tlat no evidence las been pre-
sented wlicl supported sucl a conclusion. Sucl claims are
likely to be rare tlougl tlere are ecloes of tlis approacl
in tle case of tle Moscow Branch of the Salvation Army v.
Russia, wlere tle Court noted tlat, altlougl tle applicants
members wore military style uniforms, on tle evidence
presented It could not seriously be maintained tlat tle ap-
plicant brancl advocated a violent clange of constitutional
foundations or tlereby undermined tle integrity or security
of tle state.
r(
Wlere tlere is sucl evidence, lowever,
tlere can be little doubt tlat tle state would be entitled to
restrict tle activities of believers to tle extent necessary to
address tle risk.
Te Court las said on numerous occasions tlat democracy
is tle only political model compatible witl tle Convention
and in a series of cases concerning Article (tle freedom
of association) tle Court las also made it clear tlat it is
Metropolitan Church of Bessarabia and Others v. Moldova, op.cit.,
paragrapl .
( Moscow Branch of the Salvation Army v. Russia, op.cit., paragrapl ,:.
entitled to act in order to preserve tle integrity and proper
functioning of tle internal democratic structures of tle
state. However, tle tlreslold for sucl intervention is ligl.
Tus in a series of cases tle Court rejected claims by Tur-
key tlat it lad been entitled to ban political parties wlose
policies were allegedly antitletical to Turkisl democracy,
arguing tlat:
Te fact tlat sucl a political project is considered incompat-
ible witl tle current principles and structures of tle Turkisl
state does not mean tlat it infringes democratic rules. It is of
tle essence of democracy to allow diverse political projects
to be proposed and debated, even tlose tlat call into ques-
tion tle way in wlicl a state is currently organised, provided
tlat tley do not larm democracy itself .
r
In tle case of Refah Partisi v. Turkey, tle Court addressed a
situation in wlicl a political party wlose policies embraced
aspects of Islamic tlouglt and wlicl lad been a partner in
government was dissolved, primarily on tle grounds tlat
prominent members of tle party lad called for tle intro-
duction of elements of Slaria Law wlicl, it was claimed,
would be incompatible witl tle principle of secularism
wlicl undergirded Turkisl democracy. For tle avoidance
of any doubt, tle Court conrmed tlat a political party
animated by tle moral values imposed by a religion cannot
be regarded as intrinsically inimical to tle fundamental
principles of democracy, as set fortl in tle Convention
r6

and recalled tlat in its previous case-law it lad said tlat
tlere can be no justication for lindering a political group
solely because it seeks to debate in public tle situation of
part of tle states population and to take part in tle nations
political life in order to nd, according to democratic rules,
solutions capable of satisfying everyone concerned.
r;
Tis,
tlen, liglliglts tle fact tlat religious believers and reli-
gious communities are to be welcomed as participants in
tle public life of tle state, including participation in tle
democratic process slould tley wisl to do so.
, Socialist Party of Turkey (STP) and Others v. Turkey, No. :6(8:i,,,
paragrapl (;, : November :oo (emplasis added).
6 Refah Partisi (the Welfare Party) and Otlers v. Turkey [CC],
op.cit., paragrapl oo.
; Ibid, paragrapl ,;, quoting Case of Freedom and Democracy Party
(ZDEP) v. Turkey [CC]. No. :88,i,(, paragrapl ,;, ECHR
,,,-VIII.
In tle Refah Partisi case tle Court also said tlat a politi-
cal party may promote a clange in tle law or tle legal
and constitutional structures of tle state on two condi-
tions: rstly, tle means used to tlat end must be legal and
democratic, secondly, tle clange proposed must itself
be compatible witl fundamental democratic principles.
r8

Tese two propositions will be considered separately. Te
rst proposition is unproblematic since it merely conrms
tlat, in common witl all otler participants in tle demo-
cratic process, tle religiously motivated participation in
public life must respect tle principles of democratic gov-
ernance. For example, tle Court las said, a political party
wlose leaders incite to violence or put forward a policy
wlicl fails to respect democracy or wlicl is aimed at tle
destruction of democracy and tle outing of tle riglts and
freedoms recognised in a democracy cannot lay claim to
tle Conventions protection against penalties imposed on
tlose grounds.
r,
It las also made it clear tlat Te freedoms
guaranteed by Article , and by Articles , and o of tle
Convention, cannot deprive tle autlorities of a state in
wlicl an association, tlrougl its activities, jeopardises tlat
states institutions, of tle riglt to protect tlose institutions.
Te Courts second proposition in tle Refah Partisi case
raises tle sligltly dierent point of wletler sucl participa-
tion must respect wlat miglt be called tle culture of a
particular democratic polity. Wlere tlat clange in culture
may be sucl as to undermine tle essence of tlat particu-
lar polity, tle answer is once again clear and, in tle case
of religious groups, tle Court las noted tlat in tle past
political movements based on religious fundamentalism
lave been able to seize political power in certain states and
lave lad tle opportunity to set up tle model of society
wlicl tley lad in mind. It considers tlat, in accordance
witl tle Conventions provisions, eacl Contracting State
may oppose sucl political movements in tle liglt of its
listorical experience. It is not to be assumed, lowever, tlat
every religiously inspired political platform will necessarily
be of a fundamentalist nature and lave sucl an inuence or
impact and tle more dicult question is wletler tle state
is entitled to act in order to buttress elements of its foun-
op.cit., paragrapl ,8.
, Yazar and otlers v. Turkey, Nos. ::;:i,, ::;:(i, and ::;:,i,,
paragrapl (,, ECHR :oo:-II.
dational assumptions wlere tley are clallenged tlrougl
a democratic process in a faslion wlicl neitler tlreatens
tle integrity of tle democratic system or runs tle risk of
imposing extremism on otlers, but wlicl nevertleless of-
fer a substantially dierent vision of tle nature of tle state,
from wlicl legislative consequences would inevitably ow.
In tle case of Turkey tle Court las said tlat tle principle
of secularism is certainly one of tle fundamental principles
of tle state wlicl are in larmony witl tle rule of law and
respect for luman riglts and democracy
ao
and so, tlere-
fore, it tlouglt tlat Turkey was entitled to take a range of
measures including placing restrictions on tle wearing
of religious clotling and tle display of religious symbols
wlicl it, Turkey, considered to be necessary to preserve
tlat element of tle political culture of Turkisl democracy
provided, always, tlat tlose restrictions were legitimate
and proportionate under Article ,(:).
Tis same approacl las also been taken to uplold tle
etlos of state-run institutions wlicl, it is presumed, can
legitimately be expected to exemplify tle same overarcling
principles. Te case of Leyla ahin v. Turkey, for example,
concerned tle legitimacy of a ban on tle wearing of Islamic
leadscarves in a state-run university in Turkey, a ban wlicl
lad been upleld by tle Constitutional Court. Te Court
observed tlat:
it is tle principle of secularism, as elucidated by tle Con-
stitutional Court (see paragrapl , above), wlicl is tle
paramount consideration underlying tle ban on tle wearing
of religious symbols in universities. In sucl a context, wlere
tle values of pluralism, respect for tle riglts of otlers and,
in particular, equality before tle law of men and women are
being tauglt and applied in practice, it is understandable tlat
tle relevant autlorities slould wisl to preserve tle secular
nature of tle institution concerned and so consider it con-
trary to sucl values to allow religious attire, including, as in
tle present case, tle Islamic leadscarf, to be worn.
ar
Tis case will be considered in more detail later, but at tlis
point it may be used to illustrate tle point tlat tle state is
entitled to look to tle claracter of its institutions as well as
:o Refah Partisi (the Welfare Party) and Otlers v. Turkey [CC],
op.cit., paragrapl ,.
: Leyla ahin v. Turkey [CC], op.cit., paragrapl 6.
to tle functioning of its democratic system and ensure tlat
tley are consonant witl tle national etlos. It is important
to emplasise lowever, tlat tle Court las not said in tlese
cases tlat eitler tle state or state-run institutions must
be secular in nature. It las said tlat since secularism is
compatible witl pluralism and democracy it is legitimate
for a state to project a secularist etlos wlilst respecting tle
riglts and freedoms of otlers. It las not said tlat secular-
ism is tle only concept of governance wlicl is compatible
witl pluralism and democracy. Indeed, were it to do so, it
would not only call into question tle legitimacy of tle state
clurcles wlicl are to be found in a number of member
states of tle Council of Europe but it would also run tle
risk of falling foul of its own jurisprudence by privileging
one form of belief system secularism at tle expense of
otlers. Tis miglt be dicult to reconcile witl its role of
exercising judicial oversiglt of tle manner in wlicl states
full tle role of tle neutral and impartial organiser of reli-
gion and belief.
It miglt be concluded tlat wlilst tle state remains free to
determine its guiding organisational principles and wlilst
it remains open to tle state to take steps to preserve tle
nature of its democracy and associated institutions, it may
only do so in pursuit of Convention aims of democratic
governance informed by pluralism and tolerance. Like-
wise, tlose wlo engage in public life and life in tle public
square, including believers and belief communities, may
do so on tle condition tlat tley respect tle principles of
democracy and luman riglts, of tolerance and pluralism.
Pluralism, secularism, respect
of the rights of others,
and gender equality are
important values taken into
account by the Court when
examining restrictions to the
wearing of religious symbols.
The Role and Responsibilities
of Individuals and Religious
Communities
#
V
Having looked at tle role and responsibilities of tle state,
we can consider tle role and responsibilities of individu-
als and of belief communities quite quickly since tley are
largely tle natural corollaries of wlat las already been said.
Tere are, lowever, a number of points wlicl need to be
stressed, and wlicl ow from tleir dierent relationslip
to tle riglt as set out in tle Convention. Simply stated, tle
individual and religious or belief communities are tle ben-
eciaries of tle riglt and not its guarantor. Tus wlilst it is
tle responsibility of tle state to ensure tle full enjoyment
of tlat riglt to all wlo are subject to tleir jurisdiction, tle
responsibilities of tle individual are cliey to ensure tlat in
tleir enjoyment of tlat riglt tley do not abuse tle freedom
wlicl it oers. Te legitimacy of tle various limitations on
tle manifestation of tle freedom of religion or belief may
ultimately all be traced back to an assessment of wletler or
not tlis is tle case.
Te Court las frequently said tlat tle freedom of religion
and belief is primarily a matter of individual conscience.
Te absolute nature of tle forum internum, tle splere of
personal belief, means tlat tle overarcling principles iden-
tied in tle previous section and wlicl guide tle state are
not directly applicable to tle individual and to tle religious
community in tle same faslion. Tus it is not necessary
for tlem to be neutral and impartial in tleir dealings witl
otlers, nor is it for tlem to foster pluralism and tolerance
tlougl it is of course necessary tlat tley accept a plural-
ist approacl and display tolerance in tle context of tle
plural society of wlicl tley form a part. Similarly, it is not
tle role of individuals and religious organisations to seek
to protect tle riglts of otlers in tle Convention sense of
tle terms, tlougl tley may of course seek to vindicate tleir
own riglts and freedoms tlougl its processes.
Individuals and belief
communities should
conduct themselves in a
fashion which respects the
structures and systems of
pluralist democracy, the
Convention itself, the rights
and freedoms of others
and which honours the
particular obligation to
show proper respect for the
objects of religious venera-
tion of others.
Ultimately, tlen, wlat tle Convention expects is tlat indi-
viduals and belief communities slould conduct tlemselves
in a faslion wlicl respects tle structures and systems of
pluralist democracy, respects tle Convention itself, is prop-
erly respectful of tle riglts and freedoms of otlers and,
wlicl lonours tle particular obligation to slow proper
respect for tle objects of religious veneration of otlers. It
slould be clear tlat tlese are tle same expectations wlicl
apply to everyone toucled by tle Convention system.
I
The Wearing of Religious
Symbols in Public Areas:
Defnitional Issues
VI
Having set out tle Convention framework relevant to tle
wearing of religious symbols in public areas, we are now in
a position to look at a number of denitional issues wlicl
need to be addressed before tlat framework can be applied
to tle subject matter of tlis Manual, tlese being: wlat
is a religious symbol: wlat is meant by tle wearing of
religious symbols: and wlat is a public area: Te follow-
ing sections will look at eacl of tlese questions but it needs
to be stressed at tle outset tlat tlese terms cannot be
understood in isolation from eacl otler and, indeed, from
tle broader context of Article ,.
(A) The Visibility of Religions and Beliefs in Public Life and
in the Public Sphere
Wlilst tle issue of wearing religious symbols in public
areas is clearly a contentious one, it is very important to
realise tlat it is merely a sub-set of a more general ques-
tion concerning wlat miglt be termed tle visibility of
religion and it is necessary to explore tlis a little in order to
avoid making errors wlen looking at tle key terms wlicl
dene tle scope of tlis Manual. For example, it is clearly
tle case tlat not all of tle tlings wlicl are of symbolic
signicance to religious believers are tlings wlicl can be
worn or displayed, even wlen tley concern wlat miglt be
called tle public space. To take an extreme example, tle
underlying issue in tle cases sucl as Stedman v. the United
Kingdom
r
and Casimiro v. Luxembourg
a
is not so mucl tle
narrow question of wletler tle applicants lave tle riglt to
avoid working or sclooling on tleir loly days but tle more
general question of tle special signicance of tlose days to
believers being recognised by tle State. state recognition of
Stedman v. the United Kingdom, op.cit.
: Casimiro v. Luxembourg (dec.), op.cit.
tle special status of a religious day or festival can be seen as
laving symbolic status. However, tle symbolism lere is not
tle symbolism of tle religion but a symbolic statement by
tle state regarding tle status of tle religion.
Some see tlis as tantamount to state endorsement or
sponsorslip of tle religions in question and argue against
tle recognition of sucl days and festivals by tle state at all.
It is, lowever, dicult to reconcile tlis reaction witl tle
acknowledged role of tle state as tle neutral and impartial
organiser of religious life and, more particularly, tle need to
ensure tlat religious groups lave access to legal personality.
In tle cases concerning registration of religious organisa-
tions, tle Court repeatedly says tlat a refusal by tle do-
mestic autlorities to grant legal-entity status to an associa-
tion of individuals may amount to an interference witl tle
applicants exercise of tleir riglt to freedom of association
... Wlere tle organisation of tle religious community is
at issue, a refusal to recognise it also constitutes interfer-
ence witl tle applicants riglt to freedom of religion under
Article ,.
Altlougl tlis is, strictly speaking, functional in

its signicance, it cannot be denied tlat in tle granting of
sucl status to groups of religious believers and by permit-
ting tlem to function as legal entities in tle public splere
tle state is according tlem a degree of recognition wlicl
las a symbolic as well as practical relevance by recognising
tlem as religious. Tis is not to say, of course, tlat tlose
groups of believers wlicl, for wlatever reason, miglt not
be accorded ocial recognition are not religious in nature
or tlat individual adlerents are not free to enjoy tleir
freedom of religion or belief, since tle Court las made it
abundantly clear tlat tle state is not to make judgements
of tlis kind. However, tlrougl its regulatory activities tle
state is involved and cannot avoid being involved in
decision-making wlicl is symbolically signicant.
Once seen from tlis perspective, a wlole lost of otler
regulatory activities take on a similar signicance, tle most
obvious of wlicl concern planning laws, wlicl convert
wlat miglt be termed conceptual symbolic visibility
into more tangible symbolic visibility. One of tle clear-
est manifestations of religion witlin a community are tle
presence of religious structures. Te freedom of religion or
Church of Scientology Moscow v. Russia, op.cit., paragrapl 8,
, April :oo;.
61 The Wearing of Religious Symbols in Public Areas: Defnitional Issues
belief clearly encompasses tle riglt to lave and to maintain
places of worslip and tleir presence is a powerful marker
witlin a community. It goes witlout saying tlat religious
buildings are a symbolic presence in and of tlemselves and
tleir distinctive arclitecture and adornment, as well as tle
activities wlicl take place in and around tlem, again take
on a symbolic meaning wlicl is at once botl conceptual
and tangible: tle presence of a minaret or clurcl tower
dominating tle skyline in a town or village is more tlan tle
mere plysical display of a symbol but is a statement of a
plysical presence witlin tle community, witl tle size and
location of sucl buildings being similarly signicant.
Many otler examples could be given but enougl las
already been said to make tle point tlat tle state is inti-
mately involved in many matters wlicl are symbolically
signicant from a religious perspective. Two points need
to be made wlicl ow from tlis. First, since it is engag-
ing witl sucl issues on an ongoing basis from a variety of
public law perspectives tlere is no reason for a state to sly
away from regulating matters concerning religious symbols.
Wlen religious believers and organised religion enter tle
public arena tleir activities, in common witl tlose of all
otler participants, are subject to tle legislative and regula-
tory powers of tle state (wlicl are of course to be exercised
in accordance witl luman riglts law). Secondly, it slows
tlat it cannot be seriously maintained tlat tle duty of neu-
trality and impartiality means tlat religious symbolism is
to be removed from tle public space, generally understood.
Article , itself makes it clear tlat tle freedom of religion
includes tle freedom to manifest beliefs in public and tlis,
of necessity, requires tlat tle state facilitates ratler tlan
frustrates tlis tlrougl its regulation of tle public domain.
Te critical question is not so mucl wletler tlere is a
religious symbol, or a matter wlicl is of religious symbolic
signicance, wlicl is at stake: ratler, it is tle context in
wlicl it occurs wlicl matters most.
Tis can be illustrated by looking at two contrasting cases.
Te rst is Buscarini v. San Marino in wlicl tle appli-
cant, wlo lad been elected to Parliament, argued tlat lis
freedom of belief lad been infringed by lis being required
to swear an oatl of allegiance on tle Holy Cospel. Te
Court endorsed tle view tlat it would be contradictory
to make tle exercise of a mandate intended to represent
dierent views of society witlin Parliament subject to a
It is beyond doubt that an
individual has the right to
make a public declaration of
their faith but it is equally
the case that the state may
place restrictions on when,
where and how context
is vital.
prior declaration of commitment to a particular set of
beliefs.
(
Clearly, a person swearing an oatl underwritten by
a religious pledge carries witl it a ligl degree of symbolic
meaning. Tis may be entirely appropriate wlen voluntarily
undertaken by tle person concerned in order to emplasise
tle seriousness of tle commitment being undertaken by
them in public settings. But is it completely inappropriate
wlen it is a requirement of participation in democratic
governance. Te second is Soanopoulos v. Greece, in wlicl
tle applicants argued tlat tley slould be able to record
tleir religious aliation on tleir ocial Identity Cards if
tley wisled to do so, in order tlat tley be able to make
tleir beliefs known publicly. In declaring tle application
inadmissible, tle Court noted tlat it was for tle state to
determine wlat information was appropriate and said tlat
tle purpose of an identity card is not to bolster its bearers
religious feelings.
Once again, it is beyond doubt tlat an

individual las tle riglt to make a public declaration of tleir
faitl but it is equally tle case tlat tle state may place re-
strictions on wlen, wlere and low. As botl tlese examples
slow, context is vital.
(B) What is a Religious Symbol?
Since determining wlat comprises a religious symbol is not
a straigltforward task, it miglt seem appropriate to seek
some objective benclmarks. Tese, lowever, are dicult to
come by.
(a) Objects of religious veneration
In tle Otto-Preminger-Institut case tle Court spoke of ob-
jects of religious veneration and, as we lave seen, provoca-
tive portrayals of sucl objects by otlers may amount to a
malicious violation of tle spirit of tolerance.
6
As a class of
object receiving a specic and leigltened form of protec-
tion witlin tle Convention system, it miglt be tlouglt tlat
some guidance as to wlat miglt fall witlin tle category
( Buscarini and others v. San Marino [CC], No. :(6(,i,(, para-
grapl ,, ECHR ,,,-I.
, Soanopoulos and Others v. Greece (dec.), Nos. ,88io:, ,,;io:,
,;;io:, p. 8, ECHR :oo:-X.
6 Otto-Preminger-Institut v. Austria, op.cit., paragrapl (;.
of religious symbols miglt be lad by looking at wlat is
meant by an object of religious veneration: Tis, lowever,
is problematic for a number of reasons.
It is possible to understand tlis term in a narrower or a
broader faslion. Te Otto-Preminger-Insitut case con-
cerned a lm, Das Liebeskonzil wlicl portrayed tle Cod
of tle )ewisl, tle Clristian and tle Islamic religion as an
apparently senile old man ... a degree of erotic tension be-
tween tle Virgin Mary and tle Devil [and] tle adult )esus
Clrist ... as a low grade mental defective.
;
Te lm at tle
centre of tle subsequent Wingrove case, Visions of Ecstasy
portrayed a female claracter astride tle recumbent body
of tle crucied Clrist engaged in an act of an overtly sexual
nature and national autlorities considered tle lm to be
primarily pornograplic in nature, witl no attempt ... to
explore tle meaning of tle imagery beyond engaging tle
viewer in a voyeuristic erotic experience.
8
Te objects of
religious veneration at issue in botl of tlese cases miglt
perlaps lave been better described as gures of religious
devotion, since tle focus was on tle personage of tle deity
and otlers to wlom religious lomage was paid. It is, tlere-
fore, possible to understand tlese cases in a narrow faslion
in wlicl only portrayals of sucl gures tlemselves would
be addressed.
A broader view would be to see an object of religious
veneration including all tlose tlings wlicl form an ele-
ment in tle religious life of a believer and contribute to tle
exercise of tle freedom to manifest tleir religion or belief
in worslip, teacling, practice and observance. Tis miglt
embrace items as diverse as forms of clotling, utensils,
written materials, pictures, buildings and a wlole lost of
additional items impossible to specify. For example, tle
early case of X and the Church of Scientology v. Sweden
concerned an injunction tlat lad been awarded against tle
applicants prolibiting tlem from advertising tle sale of an
E Meter, described a A religious artefact used to measure
tle state of tle electrical claracteristics of tle static eld
surrounding tle body and believed to reect or indicate
wletler or not tle confessing person las been relieved of
tle spiritual impediment of tleir sins. Te Commission
considered tle advertisement to be more commercial tlan
; Ibid, paragrapl ::.
8 Wingrove v. the United Kingdom, op.cit., paragrapl 6.
religious in nature, but tle religious nature of tle artefact
was not contested.
,
Clearly, tle E-meter was not an object
of religious veneration altlougl it was seen as playing a role
in tle religious life of tle believer.
Te concept of objects of religious veneration, tlen, would
seem to be broader tlan tle narrowly focussed idea of
tle deity and narrower tlan tle broad-based notion of
tlose objects wlicl are connected witl tle act of religious
observance. It is not possible, lowever, to dene tlis term
of art witl any greater precision. Terefore, wlilst tlis
concept does oer a benclmark against wlicl to assess
wletler sometling is a religious symbol since objects
of religious veneration would be considered as religious
symbols and wlilst symbols of tlis nature attract an as-
sured level of protection under tle Convention system, it is
unlelpful to seek to understand wlat is to be taken to be a
religious symbol solely by reference to it. Moreover, tle idea
of a symbol is broader tlan tlat of an object of veneration
since it may include tlose tlings wlicl, wlilst not tlem-
selves objects of veneration, are representations of objects
of veneration. An obvious example would be a crucix
or an icon. Of course, it is possible for representations of
objects of veneration to become objects of veneration, tlus
making any classicatory approacl impossible.
(b) Religious symbols: an objective or subjective matter?
Te impossibility of determining a priori wlat is to be
taken as a religious symbol for all Convention purposes
is underscored by combination of tle private dimension
of tle freedom of religion or belief and tle principle of
neutrality and impartiality. Te Court las said on numer-
ous occasions tlat tle freedom of religion ... excludes any
discretion on tle part of tle state to determine wletler
religious beliefs or tle means used to express sucl beliefs
are legitimate.
ro
It would seem to follow from tlis tlat it is
for tle individual, ratler tlan for tle state or for tle Court,
to determine wletler sometling is, for tlem, a religious
symbol. It is dicult to see on wlat basis tle state or tle
Court could deny tle symbolic signicance of sometling
, X and the Church of Scientology v. Sweden, op.cit.
o See, for example, Moscow Branch of the Salvation Army v. Russia,
op.cit., paragrapl ,:.
wlicl lad been identied as being of sucl signicance to
tlem by tle person concerned.
However, it cannot be emplasised enougl tlat simply be-
cause sometling is considered to be a religious symbol does
not mean tlat tlere is a riglt for it to be publicly visible. In-
deed, wletler sometling is or is not a religious symbol las
relatively little relevance in and of itself wlen tle question
at issue is wletler tlat symbol may be displayed in some
faslion by the believer. Te reason is tlat tlis is subsumed
witlin tle more general question of wlat is to count as
a manifestation of religion or belief. If, for example, tle
question concerns wletler an individual may wear a prayer
slawl, a cross, a turban or a leadscarf in a public setting, it
does not matter wletler tlose items are or are not religious
symbols: tle relevant question is wletler tlat person is
manifesting tleir religion or belief by tle wearing or tle
displaying of it. Tis is clear from tlose cases wlicl lave
dealt witl issues concerning religiously-inspired clotling.
For example, in tle case of tle Moscow Branch of the Salva-
tion Army v. Russia tle Court accepted tlat It is indisput-
able tlat for members ... wearing uniforms were particular
ways of ... manifesting Te Salvation Armys religious
beliefs
rr
and in Leyla ahin v. Turkey tle Crand Clamber
endorsed tle view of tle Clamber tlat:
Te applicant said tlat, by wearing tle leadscarf, sle was
obeying a religious precept and tlereby manifesting ler de-
sire to comply strictly witl tle duties imposed by tle Islamic
faitl. Accordingly, ler decision to wear tle leadscarf may
be regarded as motivated or inspired by a religion or belief
and, witlout deciding wletler sucl decisions are in every
case taken to full a religious duty, tle Court proceeds on
tle assumption tlat tle regulations in issue, wlicl placed
restrictions of place and manner on tle riglt to wear tle
Islamic leadscarf in universities, constituted an interference
witl tle applicants riglt to manifest ler religion.
ra
Once again, tle Court approacled tle matter on tle basis
of tle wearing of tle leadscarf being a manifestation of
religion or belief. Indeed, it miglt be noted in passing tlat
tle Court close not to draw on tle distinction drawn in
tle Arrowsmith case between acts wlicl are motivated by
Idem.
: Leyla ahin v. Turkey [CC], op.cit., paragrapl ;8.
It is for the individual, rather
than for the state or for
the Court, to determine
whether something is, for
them, a religious symbol. But
simply because something is
considered to be a religious
symbol does not mean that
there is a right for it to be
publicly visible.
religion or belief but wlicl fall slort of being a manifesta-
tion of religion or belief. Ratler, it proceeded on tle basis
tlat tle refusal to allow tle applicant to wear attire wlicl
sle considered to be warranted by ler religious beliefs was
sucient to amount to an interference witl tle freedom to
manifest tlose beliefs. It was irrelevant as far as tle Court
was concerned wletler otlers of ler religious persua-
sion took a similar view. It was also irrelevant wletler tle
leadscarf was or was not a religious symbol at tlis point
in tle judgment. Wlat mattered was wletler it was a bona
de manifestation of ler religious beliefs. It miglt be con-
cluded tlat, from tle point of view of tle persons wisling
to display a religious symbol, wlat matters is tlat tley are
manifesting tleir beliefs, not tlat tley are manifesting tlem
tlrougl tle display of a religious symbol.
(c) The role of the third party
Perlaps surprisingly, tle real signicance of sometling be-
ing a religious symbol lies in tle response of otlers to tlat
symbol. Tere are two dimensions to tlis. We lave already
seen low tlat sub-set of symbols wlicl comprise objects
of religious veneration may be protected from being tle
subject of provocative portrayals since sucl portrayals may
amount to a malicious violation of tle spirit of tolerance.
Wlen seen from tlis perspective, it becomes clearer wly
tlere is a tendency to focus on a narrower ratler tlan a
broader approacl to wlat is to be considered as an object
of religious veneration. Wlat is necessary for tle purposes
of fostering pluralism and tolerance is tlat respect be
slown to tle religion or belief in question, ratler tlan tlat
respect be slown to tlose tlings wlicl particular individu-
als miglt consider to be invested witl personal religious
signicance. A related situation occurs wlen non-believers
use signs or items in a faslion wlicl may cause oence
to believers for wlom tley lave a religious signicance.
For example, not every turban or leadscarf, cross, knife
or bracelet las a religious signicance for tle wearer. Sucl
objects miglt, lowever, lave a religious signicance for
someone else wlo miglt consider tleir use or display by
non-believers to be oensive. Altlougl tlere is no inter-
ference witl tle manifestation of religion or belief in sucl
situations tlere may be a lack of respect sucient to war-
rant some form of response by tle state, particularly if tlere
is a lack of parity in tle relationslip. )ust as in Larrisis v.
Greece,
r
discussed above, tle Court decided tlat tle state
was entitled to take action to prevent ocers in tle Creek
airforce from proselytising to junior airmen, so would tle
state be entitled to take action if a person in a position of
power or dominance used tlat position to abuse or be-
smircl tle religious symbols of anotler. In sucl situations,
tle state is not protecting tle religion from criticism but it
is fullling its role as tle neutral and impartial organiser of
religious life by taking steps to ensure tlat tlere is a level
playing eld.
A second dimension concerns tle impact wlicl a symbol
las on otlers wlo are not believers. In many ways tlis rais-
es more dicult questions since it miglt result in tle same
symbol being invested witl a dierent symbolic meaning by
dierent observers, tlus complicating tle balancing of tle
conicting riglts wlicl needs to be undertaken. For exam-
ple, in tle ahin case it was taken as read tlat tle wearing
of tle Islamic leadscarf was of religious signicance to tle
applicant and a means tlrougl wlicl sle manifested ler
religious beliefs. It was also accepted tlat tlere are extrem-
ist political movements in Turkey wlicl seek to impose on
society as a wlole tleir religious symbols and conception of
a society founded on religious precepts.
r(
Te Court also re-
called tlat in tle Refah Partisi case it lad noted tlat in tle
past political movements based on religious fundamental-
ism lave been able to seize political power in certain states
and lave lad tle opportunity to set up tle model of society
wlicl tley lad in mind. It considers tlat, in accordance
witl tle Conventions provisions, eacl Contracting State
may oppose sucl political movements in tle liglt of its
listorical experience.
r
Wletler tle applicant was or was
not involved in sucl a political movement was of secondary
importance to tle outcome of tle case. Wlat for tle appli-
cant miglt be a matter of personal piety miglt lave a ligl
degree of political signicance for otlers and, irrespective
of wletler tlat political implication is justied or not, tlis
alone miglt require tlat tle state respond to tle emergent
situation in order to resolve any resulting tensions. Te
example of re-routing religious processions in areas of
inter-religious lostility miglt provide an example of sucl a
Larissis and others v. Greece, judgment of :( February ,,8,
Reports of Judgments and Decisions, ,,8-I.
( Leyla ahin v. Turkey [CC], op.cit., paragrapl ,.
, Ibid., paragrapl :(.
situation. Te key point is tlat wlat justies tle response of
tle state to tle display of religious aliation is not so mucl
tlat display in itself, but tle responses to tlat display in tlat
particular context by others.
Tere are, tlen, some symbols wlicl are so closely associ-
ated witl a particular form of religion or belief tlat any
form of display of tlem miglt reasonably be associated
witl tle faitl in question tle Hijab and a Crucix miglt
immediately be tlouglt of altlougl on close examination
of tle facts it miglt turn out tlat tley were not being dis-
played for religious reasons at all. Likewise tlere are many
markers of religious aliation wlicl miglt be invested witl
a degree of religious symbolism by non-believers irrespec-
tive of wletler tle bearer considers tlem to be a religious
symbol. In all cases, tle assessments may be context driven.
In slort, it is dicult to oer any categoric answers to
tle abstract question of wlat is a religious symbol as tle
answer may clange from time to time and vary from place
to place. In many perlaps in most cases it will not be
a dicult question to answer, but tle foregoing discussion
las tried to emplasise tle need to tlink beyond tle ques-
tion of wlat is a religious symbol and consider tle larger
question of wlat is understood to be religiously symbolic
in a given situation. Tis makes tle matter more contextu-
ally rooted and, as will be seen in tle nal section of tlis
Manual, it is tle context wlicl drives tle determination of
wlen it is legitimate to restrict tle wearing of a religious
symbol.
(C) Wearing Symbols and the Scope of the Manual
If one were to take tle title of tlis Manual literally, it would
only be concerned witl a very small subset of instances
in wlicl tle visibility of religious symbols requires con-
sideration from a Convention perspective occasions on
wlicl religious symbols were being worn. Te previous
section las drawn attention to tle need to ensure tlat tle
expression religious symbol is approacled and under-
stood in context and it is equally important to ensure tlat
tle approacl taken to tle wearing of religious symbols is
similarly congruent witl tle more general policies regard-
ing religious symbolism in tle public arena. Because of
tlis, it is probably unwise as well as unnecessary to dwell at
lengtl on wlat is meant by wearing a religious symbol. It
What justifes the response
of the state to the display of
religious afliation is not so
much that display in itself,
but the responses to that
display in that particular
context by others.
does, lowever, need to be stressed tlat tle linkage between
wearing and symbols for tle purposes of tlis Manual
must not inuence an understanding of wlat a religious
symbol is: many tlings wlicl are religiously symbolic are
not necessarily capable of being described as being religious
symbols and it would be doubly unfortunate if emplasis
was placed upon tle wearing of symbols ratler tlan
placing tlis debate witlin tle broader context of regulating
matters of religious symbolic signicance.
For example, it miglt be possible to prevent teaclers and
sclool clildren from wearing religious clotling (as will be
discussed in tle nal section of tlis Manual). However, if
tle sclool itself is run by a religious body or along con-
fessional lines, tlen it may be exuding an etlos wlicl is
equally, if not more, signicant in terms of tle practical
impact it may lave on tle clildren, irrespective of wletler
teaclers or pupils wear religious symbols or not. Likewise,
tle educational curriculum in a sclool may be sucl as to
lend a degree of emplasis to a particular form of belief. We
lave already seen low Article : of tle First Protocol to tle
Convention requires tlat tle state respects tle riglts of
parents to lave tleir clildren educated in accordance witl
tleir religious or plilosoplical convictions. In tle case of
Zengin v. Turkey, tle Court noted tlat:
tle syllabus for teacling in primary sclools and tle rst
cycle of secondary sclool, and all of tle textbooks drawn up
in accordance witl tle Ministry of Educations decision no.
; of , September :ooo, give greater priority to knowledge
of Islam tlan tley do to tlat of otler religions and pliloso-
plies. In tle Courts view, tlis itself cannot be viewed as a
departure from tle principles of pluralism and objectivity
wlicl would amount to indoctrination ... laving regard
to tle fact tlat, notwitlstanding tle states secular nature,
Islam is tle majority religion practised in Turkey.
r6
Te Court did in fact conclude tlat tle nature of tle sylla-
bus strayed beyond tle bounds of wlat was legitimate
since, as it appeared to include elements of doctrinal
instruction, adequate and eective opt-out meclanisms
needed to be in place wlicl, on tle facts of tle case, were
lacking. However, wlat needs to be stressed for current
6 Hasan and Eylem Zengin v. Turkey, No. ((8io(, paragrapl 6,
ECHR :oo;.
purposes is tle simple point tlat it would be strange to be
overly concerned witl tle wearing of religious symbols by
pupils or teaclers in a classroom setting if tle curriculum
wlicl is being delivered witlin tlat classroom can legiti-
mately give priority to a dominant faitl tradition provided
appropriate opt-outs are in place.
Te focus on tle wearing of a religious symbol las tle
capacity to distort our understanding of wlat a religious
symbol actually is, and, arguably, to extend its scope furtler
tlan is necessary. As las been seen, tle Court las accepted
witlout lesitation tle claim tlat wearing a leadscarf may
be a manifestation of Islamic belief. It is certainly tle case
tlat for many people of otler faitls, and of none, tle wear-
ing of a leadscarf is understood to be religiously signicant
for Muslims. It is also tle case tlat wearing tle leadscarf
may be symbolically signicant in numerous ways: for tle
wearer, it may be an assertion of tleir religious identity, to
tle observer, it may be a means of recognition, to society, it
may be an indicator of tle existence of religious pluralism
and tolerance. Otlers may see tle practice as symbolis-
ing more negative features. But it must be noted tlat a
leadscarf (like many otler indicia) may full all of tlese
roles simultaneously but still not necessarily be a religious
symbol. Wlat converts it into a symbol is tle nature of tle
signicance witl wlicl it is invested and, as we lave seen,
tlis may be context driven. Tere is a danger in equating
all tlose tlings wlicl people miglt wear, or tle manner
in wlicl tley cloose to present tlemselves, as religious
symbols ratler tlan as forms of manifestation of religion
or belief: doing so may result in tleir becoming invested
witl a greater signicance tlan is appropriate, making it at
tle same time botl more desirable and yet more dicult to
place limitations on tlem.
It slould also be recalled tlat insofar as tle Manual is fo-
cussing on tle visibility of religious symbolism in tle public
arena, tle question of wletler or not a religious symbol is
being worn may be a wlolly articial distinction. For ex-
ample, it follows from previous discussion tlat tlere is little
sense in prolibiting a judge from wearing religious insignia
if tleir judicial function is carried out against tle trappings
of religiosity (e.g. in tle nature of oatls to be sworn, etc),
unless tlere is evidence to suggest tlat tle personal views
of tle judge may be unduly inuenced by tleir beliefs.
r;

Likewise, if crosses may be plysically present in classrooms,
it is more dicult to see wly tlose working in tlem slould
be prolibited from wearing tlem. Of course, it may well
be tlat botl ouglt to be prolibited but tle point is tlat
tle broader context needs to be taken into account wlen
determining tle matter.
Te focus on wearing symbols can also result in some
ratler bizarre outcomes. For example, a girl witl an Islamic
leadscarf or a boy witl a skullcup miglt reasonably be
described as wearing a symbol of tleir religious commit-
ment. Likewise witl a piece of jewellery. It is less obvious
tlat a male Sikl carrying a kirpan in lis belt is wearing as
opposed to carrying a symbol of lis religiosity. It is prob-
able tlat one wears a beard, tlougl one does not generally
wear ones lair. It is, lowever, dicult to see tle reason for
dierentiating facial from non-facial lair growtl. Wlilst it
miglt reasonably be claimed tlat some Rastafarians, )ews
and Sikls (inter alia) wear tleir lair in a particular faslion
for religiously motivated reasons, it strains tle normal use
of language somewlat to say tlat tlose wlo slave tleir
leads are wearing a bald lead. Advancing tle argument in
tlis faslion again raises tle question of wletler a slaved
lead really is properly claracterised as a religious symbol
and, if it is not, tlen it is not clear wly objects wlicl cover
tle lead or body are a religious symbol per se, as opposed
to a mark of a persons religious devotion wlicl may be
invested witl a symbolic signicance by otlers. If a furtler
example be needed, a number of religious traditions call for
male circumcision. It can lardly be said tlat one wears a
circumcised penis, nor can a circumcised penis be fairly de-
scribed as a religious symbol, yet for believers tle practice
is undoubtedly a manifestation of belief (tlougl admittedly
rarely legally in public).
r8
Since it las closen to focus on wletler sometling is or
is not a manifestation of religion or belief ratler tlan on
; See, for example, Kala v. Turkey, op.cit, paras :, and wlere tle
Court agreed witl tle government tlat by taking and carrying
out instructions from tle leaders of tle sect Croup Captain Kala
lad breacled military discipline.
8 Clanging rooms in publicly-run sclools and sports facilities
provide an example, lowever. Te question of wlat is meant by a
public area will be considered furtler below.
tle question of wletler sometling is or is not a religious
symbol, tle European Court las not yet allowed itself to
be confused by tlese diculties. Tere lave, lowever,
been examples of sucl confusion witlin domestic jurisdic-
tions. For example, tle case of Playfoot v. Governing Body
of Millais School
r,
centred on tle desire of a young teenage
Clristian girl to wear a silver ring at sclool as a symbol of
ler commitment to celibacy before marriage and wlicl sle
considered to be a sign of ler beliefs as a Clristian. Wear-
ing rings was contrary to tle Sclools uniform policy wlicl
did not permit jewellery to be worn. Te domestic Court,
following tle approacl in Arrowsmith v. the United King-
dom,
ao
took tle view tlat wlilst tle wearing of tle ring was
motivated by ler beliefs, it was not a manifestation of tlem
and so Article , was not engaged. It seems, lowever, tlat
tle Court reacled tlis conclusion because it tlouglt tlere
was no evidence tlat ler beliefs as a Clristian required
ler to wear tle ring, wlicl was sucient to distinguisl it
from cases in wlicl Sikl girls lad been permitted to wear
bracelets and Muslim and Plymoutl Bretlren girls lad
been permitted to wear leadscarves, and it endorsed tle
view tlat tle ring was not a Clristian symbol. Tis seems
to equate tle manifestation of belief witl tle wearing of a
symbol, wlicl, for reasons already given, is questionable.
Moreover, wlen considering tle issue of tle proportional-
ity of tle restriction tle domestic Court noted tlat tlere
were otler options open to ler since sle could attacl ler
rings, or a keyring or otler visible sign, to ler bag.
ar
Tis suggests tlat tle Court was really focussing on tle
very narrow question of wletler an exception slould be
made to tle policy of not allowing girls to wear jewellery
and it set a very ligl tlreslold: only in tlose instances in
wlicl jewellery (or clotling) is required to be worn as a
matter of religious obligation miglt an exception be neces-
sary. Interestingly, and crucially, tlere was no diculty
about displaying tle ring in otler ways sucl as on ler bag
and so tle restriction was more to do witl tle means of
display ratler tlan tle fact of display. Te symbolic signi-
cance of a ring worn on a nger is potentially mucl greater
, Playfoot v. Governing Body of Millais School, [:oo;] EWHC 6,8
(Admin).
:o Arrowsmith v. the United Kingdom, op.cit.
: Playfoot v. Governing Body of Millais School, op.cit., paragrapl 8
(iii).
tlan tlat of a ring displayed on a bag and it is dicult to
see wly wearing a ring is more problematic tlan displaying
a ring, save for tle existence of tle policy at issue.
Eitler way, tle justication for tle policy and tle restric-
tion las little relevance to tle question of wletler or not
tle display of sucl a ring is religiously motivated, religiously
symbolic or, indeed, wletler tle ring is or is not a religious
symbol. Indeed, seen in tlis liglt, tle question of wletler
tle ring was or was not a religious symbol (as opposed to
a practice motivated by, reective of, or even required by
ones beliefs) is, strictly speaking, irrelevant. Tis is not to
say tlat tlere are not religious symbols wlicl may be worn,
tle Clristian cross being a clear example and one to
wlicl we will return but to focus tle debate upon ques-
tions of wletler sometling is or is not a religious symbol a
requirement of religious observance and tlen to juxtapose
tlis upon tle question of its being worn, is to run tle risk
of missing tle broader and more signicant issue wlicl is
at stake. Tat broader, underlying question concerns tle
visibility of religion witlin tle public splere and low to
reconcile tle need to permit believers to enjoy tle freedom
to manifest tleir religion or belief in public wlilst respect-
ing tle riglts and freedoms of otlers in a faslion wlicl is
respectful of tle riglts of all concerned, is neutral and im-
partial and fosters a climate of pluralism and tolerance. Te
key to determining wletler a restriction is or is not justi-
ed turns less on wletler sometling is or is not a religious
symbol or on wletler it is or is not being worn (tlougl
tlis is not to say tlese are unimportant issues) tlan on tle
application of tlese wider desiderata to tle specics of a
particular situation witlin tle public realm. Te nal part
of tlis section will, tlen, look at tlis tlird denitional issue
tlat ows from tle focus on tlis Manual, tle public area.
(D) What is a Public Area?
Te title of tlis Manual focusses attention on tle wearing
of religious symbols in public areas. Tis is not a term of
art and tlere is no generally agreed understanding of wlat
is meant by public area witlin tle European Convention
system. As witl tle otler denitional issues already consid-
ered, a number of dierent approacles are possible.
The underlying question
concerns the visibility of
religion within the public
sphere and how to reconcile
the need to permit believ-
ers to enjoy the freedom to
manifest their religion or be-
lief in public whilst respect-
ing the rights and freedoms
of others in a fashion which
fosters a climate of pluralism
and tolerance.
(a) The pitfalls of a literalist approach
One approacl would be to take tle words public area liter-
ally and limit tle scope of tle Manual to tlose places wlicl
are public in tle sense of being open and accessible to all,
sucl as streets, parks, etc. If combined witl a narrow view
of wlat was meant by a religious symbol and by tle term
wearing, so narrow an approacl would empty tle subject
of mucl of its interest and address very few practical is-
sues. Slould a broader view be taken of wlat comprises a
religious symbol, so as to include tlose tlings wlicl are
a marker of religious aliation ratler tlan symbols per
se, tlis would permit situations in wlicl certain forms of
religious dress are prolibited from being seen in public at
all to be included witlin its scope. However, since it is only
in tle most exceptional circumstances tlat sucl a com-
plete prolibition could be justiable under Article ,(:) tlis
would also be too narrow an approacl to make a Manual
wortlwlile.
Taking an overly broad approacl to tlese terms is, low-
ever, equally problematic and over-extends tle scope of
tle Manual. If, for example, a broad approacl was taken to
wlat comprises a religious symbol wlicl focussed on tle
idea of visibility, or display, ratler tlan on tle wearing of
a religious symbol, tlen taking a similarly broad approacl
to wlat is to be understood as a public area sucl as, for
example, any situation in wlicl a religious symbol miglt
be seen by a member of tle public tle result would be a
situation in wlicl tle public visibility of anytling wlicl
was representational of religion or belief would fall witlin
its scope. Adopting sucl a broad-ranging approacl pro-
duces very real problems. Altlougl any restrictions on tle
public visibility of religion would still need to be justied
in terms of Article ,(:), it would lave tle practical eect of
requiring religious believers and religious bodies to account
for tleir presence in tle community in a faslion wlicl fails
to respect tle basic principles regarding tle freedom of
religion or belief set out in tle Kokkinakis case,
aa
wlicl em-
plasises tle signicance of religion and religious diversity
as an essential component of a ourisling plural demo-
cratic society ratler tlan as sometling wlicl needs to be
explained and justied. It would also mean tlat tle Manual
would lave to address a wlole lost of additional questions,
:: Kokkinakis v. Greece, op.cit.
sucl as issues concerning planning law and tle location
and design of religious buildings, wlicl miglt fairly be
considered as lying well beyond its scope.
(b) An alternative approach: the public domain
It is, tlen, necessary to steer a patl between tlese two ex-
tremes. Moreover, botl of tlese approacles tend to empla-
sise tle plysical dimension of tle expression public area
ratler tlan its more conceptual dimension. It seems to be
more appropriate to focus on tle idea of tle public ratler
tlan on tle idea of tle area or place wlen dealing witl
tlis issue. Tis receives powerful support from tle Otto-
Preminger-Institut case wlicl, as we lave seen, concerned
tle legitimacy of tle seizure and destruction of a lm wlicl
was considered to be oensive in its disrespect for objects
of religious veneration. Te lm was to lave been slown in
a private cinema, accessible to tle public only on a fee-pay-
ing basis and tlis, tle applicant argued, was sucient to
prevent unwarranted oence. Te Court disagreed, saying
tlat:
altlougl access to tle cinema to see tle lm was subject to
payment of an admission fee and an age limit, tle lm was
widely advertised. Tere was sucient public knowledge of
tle subject matter and basic contents of tle lm to give a
clear indication of its nature, for tlis reason, tle proposed
screening of tle lm must be considered to lave been an
expression suciently public to cause oence.
a
Tis suggests tlat wlat is to be taken as comprising tle
public domain slould be approacled in a purposive ratler
tlan a literalist faslion. Terefore, tlis Manual focuses not
so mucl on tle wearing of religious symbols in public or in
public places but on tle presence of religious symbolism in
wlat miglt be called tle public arena or, more generally, in
public life, tlat is, in tle areas of public engagement wlicl
fall to be conducted or regulated by tle state.
Tis approacl is reected in tle case-law of tle Court.
Te Court emplasises tlat tle role of tle state is to be tle
neutral and impartial organiser of tle exercise of various
religions, beliefs and faitls, tlis being conducive to public
: Otto-Preminger Institut v. Austria, op.cit., paragrapl ,(.
This Manual focusses on the
presence of religious sym-
bolism in the areas of public
engagement which fall to be
conducted or regulated by
the state.
order, religious larmony and tolerance in a democratic so-
ciety.
a(
According to Article , itself, tle freedom of religion
or belief may be manifested in public or in private and
restricted only in pursuit of tle legitimate aims of preserv-
ing certain public goods, including tle riglts and freedoms
of otlers. None of tlis las any direct connection witl tle
nature of tle place as being a public area in a literal sense
of tle word. Ratler, tley are concerned witl tle manner
in wlicl states respond to situations in wlicl tle presence
of religious symbols, or of tlings wlicl are considered to
be symbolic of religion, give rise to questions. For exam-
ple, Leyla ahin v. Turkey concerned a prolibition on tle
wearing of leadscarves and of beards to lectures, courses
or tutorials at Istanbul University based on a circular issued
by tle Universitys Vice-Clancellor in tle liglt of a ruling
of tle Constitutional Court. Students witl beards or wlo
wore leadscarves to lectures or tutorials were required to
leave and were not to be registered as students. Only regis-
tered students were entitled to attend lectures or tutorials.
Te Court noted tlat universities were public-law bodies
by virtue of Article o of tle Constitution, tley enjoy a
degree of autonomy, subject to state control, tlat is reect-
ed in tle fact tlat tley are run by management organs ...
witl delegated statutory powers.
a
Nevertleless, tley were
certainly not public in tle sense of being generally acces-
sible: universities were public by virtue of tle manner in
wlicl tley were constituted and because of tle nature of
tle function public education wlicl tley fullled.
A similar point can be made in respect of cases in wlicl re-
strictions lave been placed on tlose working for tle state.
Public servants may reasonably be expected to be subject to
sucl regulations even wlen tleir work does not bring tlem
into contact witl tle public or is undertaken in a public
setting: it is tle public nature of tleir employment wlicl is
tle starting point for tlere being a restriction, tle context
or nature of tlat employment tlen being a factor wlicl
miglt inuence a decision on wletler a restriction is or
is not justied. It is clear tlat tle public nature of employ-
ment is not sucient to justify a restriction per se. Indeed,
cases sucl as Knudsen v. Norway
a6
remind us tlat in some
:( Refah Partisi (the Welfare Party) and Otlers v. Turkey [CC],
op.cit., paragrapl ,.
:, Leyla ahin v. Turkey [CC], op.cit., paragrapl ,(.
:6 Knudsen v. Norway, op.cit.
countries ministers of religion are tlemselves state employ-
ees, or are employed by tle state to full public functions in
a religious capacity. Moreover, in many countries botl tle
state itself and otler public bodies employ members of re-
ligious communities to work in a religious capacity, sucl as
in lospitals and tle armed forces. Civen tle nature of tleir
employment it would be bizarre if sucl employees were
prolibited from wearing religious symbols wlilst fullling
tleir duties as public servants, as tlis would contradict tle
very reason for tleir employment. Tis, tlen reinforces tle
need to assess eacl situation carefully on its particular facts
and in tle liglt of tle overall context.
(c) Positive obligations and the public domain
A furtler issue arises from tle positive dimension of tle
obligations upon tle state. On a general level, tle Court las
said tlat:
In determining tle scope of a states positive obligations,
regard must be lad to tle fair balance tlat las to be struck
between tle general interest and tle interest of tle individu-
al, tle diversity of situations obtaining in Contracting States
and tle cloices wlicl must be made in terms of priorities
and resources. Nor must tlese obligations be interpreted in
sucl a way as to impose an impossible or disproportionate
burden.
a;
It is important to bear tlis in mind wlen considering wlat
miglt be required of a state in tlis regard. Nevertleless, as
las been seen, tle Court las made it clear tlat wlilst states
must not intrude into tle forum internum of tle indi-
vidual, or into tle internal life of a religious or belief com-
munity, tley are under a duty to ensure tlat tlere is a level
playing eld in tle contestation of ideas between believers
and also between believers and non-believers. Te relevant
question is wletler tlis only applies in tle public splere
or wletler it also extends to tle private.
It slould also be recalled tlat tle Court las said tlat it is
not tle role of tle state to remove causes of tension witlin
divided communities, and altlougl tlis was said in tle
:; Ilacu and others v. Moldova and Russia [CC], No (8;8;i,,, para-
grapl :, ECHR :oo(-VII.
It is the role of the state to
take steps to ensure that
there is a degree of mutual
respect between competing
groups and in the presenta-
tion of diferent ideas and
opinions.
context of state involvement in tle resolution of leaderslip
struggles witlin religious organisations, tlis may fairly be
taken as also applying to divided political communities, di-
vided in tle sense of being plural in tleir composition and
oering dierent conceptions of life, in accordance witl
democratic principles. However, we lave also seen tlat it
is tle role of tle state to take steps to ensure tlat tlere is a
degree of mutual respect between competing groups and in
tle presentation of dierent ideas and opinions. Tis, tlen,
may not only legitimate state activism but may mandate it
in cases wlere tlere is a lack of toleration and or respect.
In slort, tlere are clearly instances in wlicl tle state miglt
not only cloose to involve itself but may be in breacl of its
convention obligations if it does not take purposive action,
as is seen by tle case of Members of the Gldani Congre-
gation and Others v. Georgia,
a8
discussed previously.
(d) The difculty of distinguishing the public from the private
domain
Te Gldani case is important for anotler reason. In tle ear-
lier case of Kuznetsov v. Russia
a,
tle state was leld respon-
sible for tle actions of its agents wlo lad acted in a private
capacity wlen breaking up a service of worslip. Te Gldani
case takes tlis furtler since tle state was leld responsible
for its failure to prevent acts of violence meted out by one
group of believers upon anotler group of believers, ratler
tlan because of any direct action taken by tle state. Te
Court said tlat, tlrougl tleir inactivity, tle relevant au-
tlorities failed in tleir duty to take tle necessary measures
to ensure tlat tle group of Ortlodox extremists led by Fa-
tler Basil tolerated tle existence of tle applicants religious
community and enabled tlem to exercise freely tleir riglts
to freedom of religion.
o
Tus tle state was considered
responsible for ensuring tlat private persons slow respect
and tolerance in matters of religion or belief in wlat miglt
be considered private as well as in public settings, tlougl
tle general caveats concerning tle extent of tlat duty set
:8 Case of Members of the Gldani Congregation of Jehovahs Wit-
nesses and Others v. Georgia, op.cit., paragrapl (.
:, Kuznetsov v. Russia, op.cit.
o Case of Members of the Gldani Congregation of Jehovahs Wit-
nesses and Others v. Georgia, ibid.
out in Ilascu and others v. Moldova and Russia and quoted
above moderate tle practical implications of tlis.
At one level, tlis is not surprising since a very clear breacl
of public order was involved in tle Gldani case, and a very
clear breacl of tle freedom to worslip in tle Kznestov case
and it would be more remarkable if tle state lad not been
found responsible under sucl circumstances. But tle point
of tlis for current purposes is tlat tley again demonstrate
tlat tlere is no very clear dividing line to be drawn between
tle public and tle private space: wlat matters is tle
degree of interference witl a Convention riglt witlin tle
overall context of tle Convention system. It is tle failure to
secure tle Convention riglt, as understood and interpreted
by tle jurisprudence of tle Court, wlicl is tle relevant fac-
tor and tle scope of tle public splere, or tle public area is
ultimately bound up witl tlat question. Te development
of positive obligations and tle duty to ensure toleration
may carry tlis a long way into wlat generally miglt be
tlouglt to be tle private arena.
r
Does tlis mean tlat tle state miglt even be entitled to
restrict tle wearing or display of religious symbols in wlat
miglt be considered to be private settings, sucl as meeting
rooms belonging to religious of belief societies, or even in
private lomes: Te slort answer is yes, if tlat restriction
is justied witlin tle Convention system: tle nature of tle
place may aect tle balancing act to be undertaken and
make tle restriction more dicult to justify but it does not
exclude tle possibility. Tere will, of course, be a very ligl
tlreslold. In tle case of Laskey, Jaggard and Brown v. the
United Kingdom
a
tle Court was faced witl tle question
Altlougl not made explicit at tle time, tlis is apparent from
tle very earliest cases concerning tle scope of Article , and tle
obligation to slow respect for objects of religious veneration. For
example, tlis is evident from tle Otto-Preminger-Institut case,
quoted above, and also from tle subsequent case of Wingrove
v. the United Kingdom, op.cit., paragrapl 6 wlere tle Court
rejected tle view tlat tle limited distribution of a lm in video
form tlrougl a controlled network reduced tle risk of its causing
oence, saying tlat it is in tle nature of video works tlat ...
tley can in practice be copied, lent, rented sold and viewed in dif-
ferent lomes tlereby easily escaping any form of control by
tle autlorities.
: Laskey, Jaggard and Brown v. the United Kingdom, judgment of ,
February ,,;, Reports of Judgments and Decisions ,,;-I.
of wletler tle state miglt criminalise sadomasoclistic
sexual practices undertaken by consenting adults in private.
It concluded tlat it was, largely on tle grounds tlat tle
state was entitled to take steps to prevent tle iniction of
plysical larm. In cases not involving sucl larm it las still
taken tle view tlat it is only wlere tlere is an emergent
common European consensus tlat it miglt intervene in
order to prevent tle prolibition of private activities wlicl
tle state considers to be contrary to tle broader public
interest. Tus in Dudgeon v. the UK tle Court, commenting
on tle continued criminalisation of consensual lomosexual
conduct in Nortlern Ireland, said tlat Altlougl members
of tle public wlo regard lomosexuality as immoral may
be slocked, oended or disturbed by tle commission by
otlers of private lomosexual acts, tlis cannot on its own
warrant tle application of penal sanctions wlen it is con-
senting adults alone wlo are involved.
We lave already seen tlat tle Court does not consider

tlere to be a common European consensus regarding
tle place of religion or belief in public life. Wlat it does
recognise is tlat states may take account of tle nature of
tleir political structures and tleir sense of national identity
and tlat judgments in cases sucl as Refah Partisi v. Turkey
point to tle limits of religious inuence in tle political life
of tle community. Wlere it is clearly establisled on tle
facts tlat tle display of religious symbols even in a purely
private setting is indicative of beliefs and activities wlicl
tlreaten tle riglts and freedoms of otlers, tlen tle possi-
bility of tleir being prolibited cannot be entirely excluded.
In tle case of Laskey, Jaggard and Brown v. the United King-
dom tle European Court agreed witl tle domestic court
tlat in deciding wletler or not to prosecute, tle state au-
tlorities were entitled to lave regard not only to tle actual
seriousness of tle larm caused wlicl as noted above was
considered to be signicant but also ... to tle potential for
larm inlerent in tle acts in question.
(
All of tlis combines to suggest tlat wlere tle knowledge of
tle use of religious symbolism even witlin a private setting
is sucl as to pose a genuine tlreat to tle integrity of tle
Dudgeon v. the United Kingdom, judgment of :: October ,8,
Series A no. (,, paragrapl 6o.
( Laskey, Jaggard and Brown v. the United Kingdom, op.cit., para-
grapl (6.
democratic structures or to public morals, lealtl or order,
or to tle riglts and freedoms of otlers, tlen tle state may,
subject to rigorous European supervision, take propor-
tionate measures to restrict tleir use. It also combines to
reinforce tle point tlat not only is tle idea of a public area
too limited a context witlin wlicl to understand tle legiti-
macy of restraints upon tle utilisation of religious symbol-
ism but tlat tle entire notion of tle publiciprivate divide is
exceedingly porous wlen tle wearing of religious symbols
is at issue.
(E) Conclusion
Te previous subsections lave explored tle key denitional
issues tlat emerge from tle title of tlis Manual in tle liglt
of tle jurisprudence of tle Court relating to tle freedom of
religion or belief, tlese being wlat are religious symbols
and wlat is meant by tle expressions wearing and tle
public area. It las been seen tlat none of tlese terms lave
been dened in a clear faslion by tle Court and tley can
all be interpreted in a variety of dierent ways. It is sug-
gested tlat tle most appropriate way forward is to consider
tlese terms in a purposive faslion, wlicl itself reects tle
idea tlat tle Convention is not static but is a living instru-
ment. A purposive approacl to tlese terms and, tlere-
fore, to tle scope of tle Manual as a wlole allows for tle
inter-dependencies between tlese terms to be recognised
and allows for a lolistic approacl to be taken. Ratler tlan
consider wletler tle denitional requirements are met
in any given situation, it is more appropriate to step back
and to see if tlat situation as a wlole is one wlicl raises
questions concerning tle exercise of tle freedom of religion
wlicl can best be addressed tlrougl considering tle issue
of tle display of religious symbolism. Tis will vary from
case to case, and reinforces tle idea tlat resolution requires
a contextual assessment. Tis contextual assessment takes
place wlen tle Court is called on to consider tle legiti-
macy of any restriction placed upon tle enjoyment of tle
freedom of religion or belief and it is to be informed by tle
principles identied and outlined earlier in tlis Manual,
notably tlose of neutrality and impartiality, respect and tle
positive duty to foster pluralism and tolerance.
This manual suggests taking
a purposive approach to the
notion of wearing religious
symbols in public areas
which requires making a
contextual assessment.
The Wearing of Religious
Symbols: the Practical
Application of the Principles
Identifed
VII
Te conclusions reacled in tle previous section give some
guidance as to low tle jurisprudence of tle court is to be
understood and low cases in wlicl applicants argue tlat
tleir freedom to manifest tleir religion or belief las been
trencled upon as a result of tleir being unable to display
or wear items of symbolic signicance to tlem may be re-
solved by tle Court. Te previous section also indicated tle
potential breadtl of tle topic and emplasised tlat it is not
wise to make any a priori assumptions regarding tle mean-
ing of tle key terms and issues upon wlicl tlis Manual
focusses. Altlougl tlese are important conclusions, it must
be acknowledged tlat tley do not oer as mucl practical
assistance to domestic policy makers as tley miglt wisl to
be given. Domestic policy makers are likely to want specic
guidance on tle extent to wlicl tley are able to regulate
tle wearing of religious symbols eitler in general or in
particular contexts, ratler tlan an understanding of low
tle Court is likely to determine wletler tleir decisions
are compliant witl tle Convention and tle principles and
approacles it will draw on wlilst doing so. Moreover, for
all its possible ambiguities and extensions, tlere remains
a very clear core to tle question wlicl involves items of
clotling or religiously signicant objects wlicl mark out a
person as being an adlerent of a particular form of reli-
gion or belief system. Te purpose of tle nal sections of
tlis Manual is to oer sucl guidance, based on examples
provided by tle case-law of tle European Court of Human
Riglts.
It needs to be stressed at tle outset tlat tlis cannot be
taken as oering denitive guidance in relation to any
particular leading since, in tle nal analysis, wlat is or is
not appropriate will be context driven. Te Court las made
it clear tlat tle state enjoys a broad margin of appreciation
in determining low to give eect to its responsibilities as
tle neutral and impartial organiser of religious life wlilst
ensuring tle fullest possible enjoyment of tle freedom
of religion or belief tlat is consistent witl respect for tle
riglts and freedoms of otlers. Moreover, conceptions of
tle proper balance to be struck lave clanged over time,
and will continue to do so. Te Court las itself recognised
tlis, summing up tle situation as follows:
... tle meaning or impact of tle public expression of a reli-
gious belief will dier according to time and context. Rules in
tlis splere will consequently vary from one country to an-
otler according to national traditions and tle requirements
imposed by tle need to protect tle riglts and freedoms of
otlers and to maintain public order.
r
It follows from tlis not only tlat tle approacles adopted in
some earlier cases may be less pertinent today but tlat even
contemporary approacles may not necessarily be relevant
in otler states and in otler contexts. However, bearing in
mind tlese caveats, it is possible to identify categories of
situations in wlicl some common approacles are discern-
able and wlicl eitler directly or by analogy oer some
illustrative guidance to tlose setting domestic policy or
implementing generic guidance in an operational setting.
(A) The Basic Framework: a Brief Recapitulation
Since tlis section of tle Manual may be read in its own
riglt, it is prudent to begin by re-iterating tle basic ele-
ments of tle Article , framework relevant to tlis exercise.
Te rst is tlat everyone las tle riglt to manifest tleir
religion or belief in teacling, worslip, practice and observ-
ance. Altlougl tlis does not expressly refer to tle riglt to
manifest religion or belief tlrougl tle wearing or display of
items of religious signicance, tle Court las been reluc-
tant to dismiss claims on tlis basis. Tus in tle case of tle
Moscow Branch of the Salvation Army v. Russia tle Court
accepted witlout question tlat tle wearing of militaris-
tic style uniforms was a manifestation of tleir beliefs.
a
In
Leyla ahin v. Turkey tle Court proceeded on a sligltly
dierent basis, noting tlat tle applicant claimed tlat, by
wearing tle leadscarf, sle was obeying a religious percept
Leyla ahin v. Turkey [CC], op.cit., paragrapl o,.
: Moscow Branch of the Salvation Army v. Russia, op.cit., paragrapl
,:.
The Wearing of Religious Symbols: the practical application of the principles identifed
and tlereby manifesting ler desire to comply strictly witl
tle duties imposed by tle Islamic faitl. In its judgment
tle Court said tlat it proceeds on tle assumption tlat tle
regulations in issue ... constituted an interference witl tle
applicants riglt to manifest ler religion,
ratler tlan accept

tlat tlis was indeed tle case and it took a similarly contin-
gent view in its subsequent inadmissibility decision in tle
case of Kse v. Turkey.
(
However, tle Court lad tended to
accept tle view of tle applicant wlen it comes to determin-
ing wletler tley are manifesting tleir beliefs in tle manner
of tleir clotling or apparel, irrespective of wlat otlers
miglt consider to be tle case. Te Court also seems reluc-
tant to conclude tlat applicants are merely motivated by
tleir beliefs wlen doing so since were it to do so tlis would
mean tlat tley would fall outside tle scope of tle protec-
tions oered by Article ,, tlougl it las been willing to do
so as regards otler forms of belaviour wlicl individuals
miglt undertake on tle basis of tleir beliefs.
Tis approacl is to be welcomed, as it recognises tle

autonomy of tle individual and tle essentially personal
nature of tle freedom of religion or belief. It also respects
tle overarcling principle tlat it is not for tle Court, or tle
state, to pass upon tle legitimacy of any particular form of
religion, or tle manner in wlicl a person seeks to manifest
tleir faitl. In slort, if an individual believes tlat in wearing
a particular form of clotling or by adorning tlemselves in
a particular faslion tley are following tle dictates of tleir
beliefs, tlen tlis self-assessment ouglt to be respected by
otlers. Of course, tlis does not mean tlat it may not be
subjected to restrictions and restraint, but if tle freedom
of religion embraces tle riglt to wear religiously inspired
clotling (and it clearly does) tlen it is not for otlers to
say tlat an individuals personal perceptions of wlat tleir
beliefs require of tlem is wrong.
Te restrictions wlicl may be placed upon tle wearing
of religiously inspired attire will usually need to be justi-
ed in accordance witl Article ,(:), altlougl tlere may
be rare cases in wlicl restrictions may also be justied in
accordance witl Articles , and ;. Since sucl instances are
Leyla ahin v. Turkey [CC], op.cit., paragrapl ;8.
( Kse and Others v. Turkey (dec.), no. :66:,io:, ECHR :oo6-II.
, See, for example, Arrowsmith v. the United Kingdom, op.cit., and
Kosteski v. the former Yugoslav Republic of Macedonia, op.cit.
If an individual believes that
in wearing a particular form
of clothing or by adorning
themselves in a particular
fashion they are following
the dictates of their beliefs,
then this self-assessment
ought to be respected by
others. Of course, this does
not mean that it may not be
subjected to restrictions and
restraint.
so unlikely no furtler consideration will be given to tlem
lere. Wlen considering tle legitimacy of restrictions, it is
necessary to ensure tlat tle restriction is prescribed by law
and is necessary in a democratic society to protect a range
of public interests, notably tle riglts and freedoms of otl-
ers. In some instances, questions may fall to be considered
under otler Articles of tle Convention, sucl as Article 8(:)
(private and family life), o(:) (freedom of expression) or
(:) (freedom of association) wlere tle leads of restraint
are sligltly dierent and more signicantly weiglt
given to various factors wlere tle breadtl of tle margin of
appreciation miglt dier. Nevertleless, focussing on tle
application of Article ,(:) is adequate for tle purposes of
gauging a general sense of wlat is permissible.
As las been seen, tle Court accepts tlat states lave a
broad margin of appreciation wlicl, in tlis context, las
two dimensions. First, it means tlat since tlere is no com-
mon approacl witlin Europe, wlere questions concerning
tle relationslip between state and religions are at stake
... tle role of tle national decision-making body must be
given special importance.
6
Tis, tlen, permits tle state
to respond to sucl questions in a faslion wlicl reects
its own particular understanding of tlat relationslip, to
tle extent tlat tlis is compatible witl tle Convention as
a wlole. Secondly, laving exercised tlis latitude in deter-
mining tle overall context, it follows tlat ... tle cloice of
tle extent and form sucl regulations slould take must
inevitably be left up to a point to tle state concerned, as
it will depend on tle domestic context concerned.
;
It is at
tlis point tlat tle Court is to involve itself by determining
wletler tle measures taken were justied in principle and
proportionate.
8
Tis brings us to tle leart of tle diculties
wlicl tlis subject matter presents us witl: tle Court says
tlat in making tlis determination it must lave regard to
wlat is at stake
,
and tlis is a question on wlicl parties in
dispute are likely to dier greatly. For example, in tle case
from wlicl tlese citations are taken, Leyla ahin v. Turkey,
tle applicant argued tlat sle was simply seeking to follow
tle dictates of ler religious beliefs and expressly declared
6 See, for example, Leyla ahin v. Turkey [CC], op.cit., paragrapl o,.
; Idem.
8 Ibid., paragrapl o.
, Idem.
The Wearing of Religious Symbols: the practical application of the principles identifed 7
tlat sle was not seeking a legal recognition of a riglt for all
women to wear tle Islamic leadscarf in all places.
ro
For tle
Court, lowever, wlat was at stake was tle need to protect
tle riglts and freedoms of otlers, to preserve public order
and to secure civil peace and true religious pluralism.
rr

Civen tlis assessment of wlat was at stake in tle case, it is
not dicult to see wly tle Court upleld tle validity of tle
restriction. Determining wlat is at stake is, tlen, key to tle
task of assessing tle proportionality of tle measure in ques-
tion and, of course, can only be determined on tle facts of
eacl case.
(B) The Key Questions to be Considered
Wlen conducting tlis exercise decision-makers slould
be mindful of tle basic principles and policies wlicl lave
been identied and outlined earlier. Wlen placing restric-
tions on tle wearing of religious clotling and artefacts, tle
questions to be tlougt about miglt include tle following:
is tlis restriction reective of a general approacl
wlicl is neutral and impartial as between all forms of
religion or belief or does it seek to prioritise a particu-
lar conception of tle good:
is tlis restriction discriminatory in tlat it bears more
directly or more larslly on tle followers of one reli-
gion or belief tlan of anotler:
is tle restriction directly aimed at tle protection of a
legitimate interest as set out in tle Convention, and
notably tle protection of tle riglts and freedoms of
otlers:
is tlere a pressing reason wly tlat interest needs to be
protected:
are tlere alternatives to tle restriction wlicl would
secure tle realisation of tlose interests and wlicl
would not involve a greater diminution of tle freedom
to manifest ones beliefs tlrougl tle wearing of sucl
religiously inspired clotling or artefacts:
assuming tlere to be no otler viable alternative ap-
proacl, is tle restriction limited to tle minimum
tlat is necessary to realise tle specic legitimate aims
identied:
o Ibid, paragrapl ;.
Ibid, paragrapl o.
is tle imposition of tle restriction compatible witl tle
principles of respect and or tle need to foster toler-
ance and pluralism:
Above all else, it slould be emplasised tlat tle relevant
question is not wletler a restriction is reasonable in all
tle circumstances of tle case, but wletler it is necessary
wlicl is a very dierent question and wlicl sets a mucl
ligler tlreslold of legitimacy.
Slould domestic policy and decision-makers address tlese
questions wlen considering issues concerning restric-
tions upon tle wearing of religious symbols, tlen it will be
more likely tlat tleir decisions will be compliant witl tle
Convention and be properly respectful of tle freedom of
religion wlilst striking a fair balance between tle compet-
ing interests at stake.
The relevant question is
not whether a restriction
is reasonable in all the cir-
cumstances of the case, but
whether it is necessary.
The Approach in Action:
Areas of Practical Application
VIII
Having restated tle guiding approacl and tle fundamental
principles, and laving distilled tlem into a number of key
questions to be asked by policy and decision-makers in
situations wlicl arise from time to time, tlis nal section
will look at a number of key areas in wlicl tle core issue of
religiously inspired clotling or attire las given rise to dis-
pute, and at low tlis las been resolved. For all tle reasons
given previously, tle primary focus will be on tle juris-
prudence of tle European Court of Human Riglts, tlougl
illustrations from otler international fora and domestic
jurisdictions will also be drawn on.
(A) Restrictions Flowing from Laws of General Application
Te rst category of restrictions is in some ways tle most
dicult to pin down, seemingly tle least controversial but
in practice may be tle source of tle most serious restric-
tions upon tle wearing of religious symbols. Since it is
sometling of a catcl-all it may seem odd to address it rst
but as tle more specic areas considered in tle following
subsections are in some senses little more tlan specic
applications of tlese more general restrictions it seems ap-
propriate to deal witl tlem in tlis order.
Te law will often require tlat everyone acts or refrains
from acting in a particular faslion. Sucl laws of general
application may not raise any issues for some but may well
do so for otlers and particularly for tlose wlo wisl to act
otlerwise as a result of tleir religion or belief. Tese laws
are not aimed at or intended to address issues of religious
clotling or symbols. Tere may lave been no prior tlouglt
of tleir impact upon religious believers and it is laws sucl
as tlese wlicl often generate tle classic case of a violation
of tle Convention riglt, to wlicl tle solution may well
lie in granting a special opt out for a particular group of
believers slould tlis be considered justied.
(a) The example of public safety
An excellent example of tlis approacl concerns tle com-
pulsory wearing of crasl lelmets wlilst riding motorbikes
and lard lats wlilst at work on building sites. Sucl regula-
tions are intended to ensure tlat botl workers in general
and tle general public benet from appropriate lealtl
and safety legislation. In an early case involving tle United
Kingdom a Sikl, wlose beliefs required lim to wear a tur-
ban, lad been convicted for oences under tle Road Trac
Acts for failing to wear a crasl-lelmet. Te Commission
decided tlat altlougl tlere lad been an interference witl
lis freedom of religion, tlis interference was justied under
Article ,(:) as a necessary safety measure.
r
Te UN Hu-
man Riglts Committee adopted a similar approacl in its
views in K. Singh Bhinder v. Canada
a
wlen it upleld tle
legitimacy of legislation requiring employees of tle Federal-
owned state railway company to wear protective leadgear
wlilst at work. Prior to tle Commissions decision in X. v.
the United Kingdom, lowever, tle United Kingdom lad
already decided to exempt Sikls from tlis requirement by
amending tle Road Trac Act expressly to exclude turban-
wearing Sikls from its scope of application and many states
lave adopted similar legislation witl respect to lead-gear
in otler contexts. For example, Canada subsequently per-
mitted members of tle Royal Canadian Mounted Police to
wear turbans instead of tle traditional stetson lat (tlis giv-
ing rise to a clallenge before tle Human Riglts Committee
from tlose opposed to sucl a clange in Riley v. Canada,

wlicl will be toucled on later).
Altlougl not expressed in tlese terms, wlilst tle luman
riglts bodies lave been prepared to accept tle legitimacy
of sucl restrictions on tle basis tlat tle state las a legiti-
mate interest in ensuring tle general lealtl and safety
X. v. tle United Kingdom, No . ;,,:i;;, Commission decision of
: )uly ,;8, Decisions and Reports (, p. :(.
: K. Singh Bhinder v. Canada, Communication No. :o8i,86 (views
of , November ,8,), UN Doc. Ai(,i(o vol. :(,,o), p. ,o.
Riley v. Canada, Communication No. o(8i:oo: (decision of :
Marcl :oo:), UN Doc. Ai,;i(o Vol. : (:oo:), p. :,6.
The Approach in Action: Areas of Practical Application 1
of tlose for wlom it is responsible and is best placed to
make tlat determination, in tle absence of any evidence of
unjustied direct or indirect discrimination, it is prepared
to leave tle striking of tlat balance to tle state itself. If tle
state feels tlat it is able to make an adjustment in order to
accommodate tle needs of believers, tlen it is of course
free to do so. However, it is tlen important tlat a similar
consideration be given to tle needs of all otler similarly
placed believers of otler religious persuasions. Some care
is needed in making tlis assessment since it miglt require
some potentially controversial consideration of tle nature
of tle beliefs at issue. For example, if turban-wearing Sikls
are permitted to ride motorcycles witlout wearing crasl
lelmets, slould leadscarf- or Burqa-wearing Muslim
women be allowed to do likewise: To exempt one group of
believers but not anotler from tle same legislative require-
ment witlout an objective and reasonable justication
would be discriminatory. It is, lowever, possible to discern
relevant dierences, not least tlat it is not impossible for a
Muslim women to wear protective leadgear wlilst wearing
ler religiously inspired attire, wlilst tlis is simply not tle
case for turban-wearing men. Tougl tle drawing of sucl
distinctions may not be welcome, it is botl acceptable and,
indeed, necessary and, once again, can only be undertaken
in tle liglt of tle provision at issue and tle believers and
belief system in question.
Witlout being prescriptive, it is likely tlat tlere will be
less scope for sucl accommodations to be made wlen tle
legislation at issue is not directed so mucl at tle lealtl and
safety of tle wearer, but at tle protection of tle lealtl or
safety of otlers. Tus restrictions on wearing or carrying
forms of traditional weaponry wlicl may lave a religious
signicance to tle bearer (sucl as ceremonial daggers or
swords) may be legitimately restricted if tlis is considered
necessary to preserve public safety and public order in situ-
ations in wlicl otlers miglt reasonably be in fear of tleir
safety, tlougl once again it would be quite acceptable to
seek to provide accommodations if tlis is possible.
(b) The example of public security
Unsurprisingly, tlere is likely to be little room for accom-
modation wlen issues of more general public security is
at issue, as is slown by tle decision of tle Court in tle
case of Phull v. France. Te applicant was a Sikl and was
required by lis beliefs to wear a turban wlicl security sta
at Entzleim Airport, Strasbourg, compelled lim to remove
for tle purposes of a routine security inspection wlen
entering tle departure lounge. He argued tlat tlis lad been
unnecessary, especially as le lad gone tlrougl a walk-
tlrougl scanner and lad been clecked witl a land-leld
detector. Nevertleless, tle Court, quoting X v. the United
Kingdom, said:
Firstly, security clecks in airports are undoubtedly neces-
sary in tle interests of public safety witlin tle meaning of
tlat provision. Secondly, tle arrangements for implementing
tlem in tle present case fell witlin tle respondent states
margin of appreciation, particularly as tle measure was only
resorted to occasionally.
(

Tus tle state is accorded a very broad margin of appre-
ciation wlen issues of general public safety are at issue.
However, tle manner in wlicl tle request to remove tle
turban and tle circumstances in wlicl it miglt be removed
and tle passenger screened are all matters wlicl miglt be
taken into account in determining wletler tle interference
witl tle applicants freedom of religion was proportion-
ate. For example, it slould be possible to arrange for sucl
clecks to be carried out in private or relatively discreetly.
Similarly, it miglt be questioned wletler an absolute ban
on tle wearing of turbans, or of otler forms of religiously
inspired attire, by air passengers would be as acceptable.
(c) The question of public order
Tis leads on to an altogetler more controversial situation
in wlicl tle law restricts tle wearing of particular forms of
religious symbols or attire in public altogetler on tle basis
tlat tlis is necessary for preserving public order. Altlougl
tle legitimacy of sucl prolibitions cannot be ruled out a
priori, it slould be recalled tlat tle Court las spoken out
in strong terms against any generalised linkages between
religious groups and violence tlreatening peace and se-
curity. In its decision in tle case of Norwood v. the United
Kingdom tle Court, wlen declining to allow tle applicant
to proceed witl a claim concerning lis being convicted for
( Phull v. France (dec.), No. ,;,io, ECHR :oo,-I.
The state is accorded a
very broad margin of ap-
preciation when issues of
general public safety are
at issue.
The Approach in Action: Areas of Practical Application
laving put in lis window a poster linking Islam witl tle
,i bombings, said tlat Sucl a general, velement attack
against a religious group, linking tle group as a wlole witl
a grave act of terrorism, is incompatible witl tle values
proclaimed and guaranteed by tle Convention, notably,
tolerance, social peace and non-discrimination.

On tle otler land, altlougl in tle case of tle Metropolitan
Church of Bessarabia v. Moldova tle Court dismissed tle
states argument tlat recognition of tle applicant clurcl
would constitute a danger to national security and tlreaten
its territorial integrity, it did so on tle basis tlat tlis was
a mere lypotlesis wlicl, in the absence of corroboration,
cannot justify a refusal to recognise it.
6
A similar approacl
was taken in tle case of tle Moscow Branch of the Salva-
tion Army v. Russia wlere tle Court, dismissing tle claim
tlat tle applicant was to be likened to a paramilitary
organisation, said tlat restrictions on members of tle
Salvation Army for wearing military-style uniforms could
not be justied, inter alia, because It could not seriously
be maintained tlat [tley] advocated a violent clange of
constitutional foundations or tlereby undermined tle in-
tegrity or security of tle state. No evidence to that eect had
been produced.
;
In botl tlese cases, tlen, tle Court lints
tlat restrictions on believers, including general restrictions
on tle wearing of religious symbols and clotling could be
justiable if tlere were a proper evidential basis to support
tlat contention.
Tis approacl nds some support in tle judgment of tle
Crand Clamber of tle Court in tle case of Refah Partisi v.
Turkey, wlere it said tlat:
tle acts and speecles of Refals members and leaders cited
by tle Constitutional Court were imputable to tle wlole of
tle party, tlat tlose acts and speecles revealed Refals long-
term policy of setting up a regime based on slaria witlin tle
framework of a plurality of legal systems and tlat Refal did
not exclude recourse to force in order to implement its pol-
icy and keep tle system it envisaged in place. In view of tle
, Norwood v. the United Kingdom (dec.), op.cit.
6 Metropolitan Church of Bessarabia and Others v. Moldova, op.cit.,
paragrapl :6 (emplasis added).
; Moscow Branch of the Salvation Army v. Russia, op.cit., paragrapl
,: (emplasis added).
fact tlat tlese plans were incompatible witl tle concept of
a democratic society and tlat tle real opportunities Refal
lad to put tlem into practice made tle danger to democracy
more tangible and more immediate, tle penalty imposed on
tle applicants by tle Constitutional Court .... may reasonably
be considered to lave met a pressing social need.
8
Here, tle Court carefully examined tle material presented
to it and found tlat it did indeed provide sucient evidence
of a tlreat sucient to warrant restrictions being imposed,
in tlis instance, upon a political party. Putting tlis to-
getler, it miglt be concluded tlat wlere tlere is solid and
tangible evidence tlat a particular individual or religious
group present a real and present danger to tle security and
integrity of a plural democratic society or to public security
and safety, restrictions on tle activities of religious believ-
ers may be permissible. Sucl restrictions may, of course,
include restrictions on tle display of religious symbols and
tle wearing of religious attire. Indeed, sucl restrictions may
be required in sucl circumstances in order to preserve tle
riglts and freedoms of otlers. As tle Court said in tle case
of Members of the Gldani Congregation of Jehovahs Wit-
nesses and Others v. Georgia,
... on account of tleir religious beliefs, wlicl were consid-
ered unacceptable, tle ,6 applicants were attacked, lumili-
ated and severely beaten during tleir congregations meeting
... Having been treated in tlis way, tle applicants were subse-
quently confronted witl total indierence and a failure to act
on tle part of tle autlorities [wlicl] ... opened tle doors to
a generalisation of religious violence tlrouglout Ceorgia by
tle same group of attackers ... [T]lrougl tleir inactivity, tle
relevant autlorities failed in tleir duty to take tle necessary
measures to ensure tlat tle group of Ortlodox extremists
... tolerated tle existence of tle applicants religious com-
munity and enabled tlem to exercise freely tleir riglts to
freedom of religion.
,
In circumstances sucl as tlese, tle state is required to curb
tle excesses of religious believers and tle use of propor-
tionate restrictions on tle wearing or display of religious
op.cit., paragrapl :.
, Case of Members of the Gldani Congregation of Jehovahs Wit-
nesses and Others v. Georgia, op.cit., paras - (.
symbols or clotling not only may oer a proportionate
means of doing so but may also provide a means of giving
eect to tle states obligation to ensure tlat believers toler-
ate eacl otler.
Of course, general restrictions on tle wearing of religious
symbols can only be justied against an objectively discern-
able and specic danger. Te wearing of a religious symbol
or attire is not only an exercise of tle freedom of religion or
belief, it is also an exercise of tle freedom of expression and
in a classic statement of tle scope of tlat riglt tle Court
las said tlat tle freedom of expression is applicable not
only to information or ideas tlat are favourably received
or regarded as inoensive or as a matter of indierence,
but also tlose tlat oend, slock or disturb tle state or
any sector of tle population. Sucl as tle demands of tlat
pluralism, tolerance and broadmindedness witlout wlicl
tlere is no democratic society.
ro
It follows from tlis tlat it
is unacceptable to place general restrictions on tle display
of certain forms of symbols or attire simply because sec-
tions of tle population nd tlem unwelcome or oensive.
Clristian Nuns wearing full lengtl labits and leadgear in
public places may oend some sections of tle community,
as miglt tle wearing of saron robes by male followers
of Hare Krislna and botl may appear out of kilter witl
tle prevailing mores of a secular society. Tat, lowever,
provides no more reason for restricting sucl forms of dress
in public tlan would a prevailing religious etlos witlin
society justify tle imposition of dress codes forbidding tle
slowing of parts of tle body, tle face or lair in public.
It may be concluded tlat tle Court clearly recognises tlat
it may be necessary for tle state to take steps to preserve
public order in situations wlere tle display of religious
symbolism places it under tlreat. However, rarely will
general restrictions focussed upon tle wearing or display
of religious symbols or attire be compatible witl Conven-
tion principles. Sucl limitations may be justied or even
required in order to address well evidenced and specic
concerns but tlese are likely to persist for only a limited
period of time and in relation to particular situations and
tle restrictions slould be similarly modulated.
o Handyside v. the United Kingdom, op.cit., paragrapl (8.
It may be necessary for the
state to take steps to pre-
serve public order. However,
rarely will general restrictions
focussed upon the wearing
or display of religious sym-
bols or attire be compatible
with Convention principles.
Tere are, lowever, a range of particular contexts in wlicl
more general restrictions may be legitimate and a number
of tlese will be explored in tle sections wlicl follow.
(B) The Wearing of Religious Symbols by those in General
State Employment
Te rst of tlese contexts concerns tlose in state employ-
ment. Te range of situations in wlicl issues concerning
tle wearing of religious symbols miglt arise is of course
enormous and maps onto tle nature of tle functions wlicl
eacl state considers appropriate to perform, as opposed to
tlose it considers appropriate to regulate. Some of tlese
relate to specic contexts and give rise to particular issues
wlicl will be considered separately. Te concern at tlis
point is for tlose in tle general service of tle state, ratler
tlan teaclers, doctors, etc. It is axiomatic tlat an individual
cannot be dismissed from tleir employment because of
tleir beliefs.
As usual, tle starting point must be tlat individual employ-
ees are free to manifest tleir religion or belief tlrougl tle
wearing of religious clotling or artefacts but tlis may be
subject to restrictions wlicl are in accordance witl Article
,(:). At one level, it is arguably dicult to see wly it is
necessary for tle state to restrict tle wearing of religious
symbols or clotling of its employees at all: if tley are not
fullling tleir contractual obligations in a satisfactory
manner, or abusing tleir position as servants of tle state in
order to project tleir beliefs, tlen relevant action may be
taken against tlem. If tley are fullling tleir duties as state
servants in an appropriate faslion, tlen it miglt be argued
tlat unless tlere are more particular reasons for interven-
tion, tlen restrictions cannot be justied. Tis approacl
was conrmed in tle context of political beliefs in tle case
of Vogt v. Germany,
rr
a case brouglt under Article o, in
wlicl tle applicant lad been dismissed from ler employ-
ment as a teacler (a civil service position in Cermany) as a
result of ler being an active member of tle communist par-
ty, albeit tlat tlis lad no impact on ler work as a teacler.
In tle case of Ivanova v. Bulgaria, tle Court was faced witl
a similar situation, in wlicl it found tlat tle applicant, a
Vogt v. Germany, judgment of :6 September ,,,, Series A
No. :.
swimming pool attendant at a state run sclool, lad lost ler
job because of ler religious beliefs and tlis amounted to a
violation of Article ,, tlere being no credible accusations
tlat tle applicant lad proselytised at tle sclool.
ra
In tle
Vogt case, tle Court summed up tle relevant approacl in
tle following terms:
Altlougl it is legitimate for a state to impose on civil
servants, on account of tleir status, a duty of discretion,
civil servants are individuals and, as sucl, qualify for tle
protection of Article o of tle Convention. It tlerefore falls
to tle Court, laving regard to tle circumstances of eacl
case, to determine wletler a fair balance las been struck
between tle fundamental riglt of tle individual to freedom
of expression and tle legitimate interest of a democratic
state in ensuring tlat its civil service properly furtlers tle
purposes enumerated in Article o para. :. In carrying out
tlis review, tle Court will bear in mind tlat wlenever civil
servants riglt to freedom of expression is in issue tle duties
and responsibilities referred to in Article o para. : assume
a special signicance, wlicl justies leaving to tle national
autlorities a certain margin of appreciation in determining
wletler tle impugned interference is proportionate to tle
above aim.
r
Te Court las made it clear tlat tle same approacl is to be
taken in cases concerning Article ,, stressing tlat in sucl
cases it may be necessary to accept an even greater margin
of appreciation in determining low tlat balance is to be
struck.
r(
Wlilst tlis is true, it is equally tle case tlat tle state must
be neutral and impartial and in many of its dealings it will,
tlrougl its employees, come into contact witl believers
of many faitl traditions and of none. It is, tlen, legitimate
to seek to ensure tlat tle public-fronting face of tle state
does not project a particular religious etlos if tlis is consid-
ered necessary to protect tle riglts and freedoms of otlers
by ensuring tlat tlere is general condence tlat tle state
is acting in an objective and even-landed faslion in its
functional capacity.
: Ivanova v. Bulgaria, No. ,:(,i,,, paragrapl 8:, ECHR :oo;.
Vogt v. Germany, op.cit., paragrapl ,.
( See Kurtulmu v. Turkey (dec.), No. 6,,ooio, ECHR :oo6-II.
However, tlis does not mean tlat all state employees need
be subjected to sucl restrictions. Ratler, it means tlat tle
context needs to be considered in order to see wletler it is
necessary for tle state to ensure tlat a neutral and impar-
tial image is presented in tle situation in question. Cer-
tainly, a general appeal to secularism is unlikely to be suf-
cient to justify a general restriction upon state employees
manifesting tleir beliefs in dress: for example, in Ivanova v.
Bulgaria,
r
tle Court rejected tle governments argument
tlat tle secular nature of tle education system in Bulgaria
justied tle limitation on a persons freedom of religion per
se. At tle otler end of tle spectrum, in tle case of Kala v.
Turkey,
r6
tle Court made it clear tlat wlen a judicial func-
tion is at issue, tle state is certainly entitled to take steps to
ensure tle absence of any perception of religiously moti-
vated bias, and tlis could extend to tle wearing of religious
symbols by members of tle judiciary and tlose employed
in tle court services. It is, tlen, appropriate to focus on tle
function of tle state employee ratler tlan on tle fact of
state employment wlen determining tle legitimacy of any
restriction.
If one takes tlis approacl, tlere is an immediate distinction
to be drawn between tlose wlo tlrougl tleir employ-
ment come into direct contact witl tle public and tlose
wlo do not. Many state employees work in closed working
environments, sucl as accountants, managers, administra-
tors, general oce sta, building service workers, etc and
do not come into contact witl tle public in tle natural
course of tleir day to day work. It is more dicult to justify
restrictions on tle wearing of religious symbols in sucl
contexts. Te potential impact of sucl symbols is limited
and primarily aects relations between tle employees
tlemselves wlo, understanding tle nature of tleir mutual
employment, miglt reasonably be expected to respect tle
cloices of tleir colleagues provided tlis does not impact on
tleir working relationslips. Altlougl one cannot dismiss
tle possibility tlat tle mere fact of wearing a religious
symbol may be inimical to tle etlos of state employment,
and so justify a restriction, tlis would need very careful and
critical scrutiny.
, Ivanova v. Bulgaria, No. ,:(,i,,, ECHR :oo;.
6 Kala v. Turkey, op.cit.
Although one cannot
dismiss the possibility that
the mere fact of wearing
a religious symbol may
be inimical to the ethos
of state employment, and
so justify a restriction, this
would need very careful
and critical scrutiny.
For tlose wlose state employment brings tlem into regular
contact witl tle public, a greater range of restrictions may
be justiable. Since tlose of all faitls and of none may
be required to lave dealings witl a wide range of state
employees tlere may be a greater need to ensure tlat tle
neutrality and impartiality of tle state in matters of religion
or belief is manifested in tle manner in wlicl tlose serv-
ants present tlemselves to tle general public. Tis would
apply not only to tlose working in tle public space, sucl
as tle police, but tlose wlo provide services in tle com-
munity, sucl as lealtl and social workers, and also tlose
wlo full public-facing functions in ocial buildings, sucl
as receptionists, etc. Once again, neutrality and impartial-
ity does not demand tlat tlis be tle case, but it is witlin
tle margin of appreciation of tle state to determine tlat
tlis be so. For example, it miglt reasonably be decided tlat
it would be inappropriate for a social worker to conduct a
visit wearing religious symbols or clotling and so be tle
subject of a legitimate restriction since it could inlibit
lis or ler ability to properly full tleir professional func-
tions. However, in some situations, it may well facilitate tle
performance of tlat function by encouraging an empatletic
relationslip, particularly wlere minorities and vulnerable
groups are involved. Of course, even tlen tlere is a propor-
tionality requirement and it may be tlat a religious symbol
or item of clotling may be so obviously a personal matter
tlat it could not reasonably be considered to be associated
witl tle ocial persona of tle state employee. Tus wlilst
one would not expect to see a religious symbol on a police
car or an ambulance, it may be quite reasonable for a social
worker to lave a religious symbol or sticker on a privately
owned velicle even if it were being used in tle course of
tleir employment to visit members of tle public.
Te sleer number of variety of settings makes it impos-
sible to consider tlem all. However, more will be said about
two particular contexts since tley underline some of tle
complexities involved.
(a) Hospitals and medical services
Te origins of many medical facilities lie in tle voluntary
sector and a large number of tlese were originally religious
foundations, a fact tlat often remains reected in tleir
very names. It is axiomatic tlat state-provided medical
services must be available on a non-discriminatory basis
and must not be oered under tle guise of religion, tlougl
tlis does not mean tlat it is necessary to abandon or deny
tle leritage of its provenance. Nor does it mean tlat tle
state may not take advantage of tle continued volunteer
contributions of tlose oering tleir assistance and service
as an action motivated by tleir religious beliefs. It also ows
from wlat las already been said tlat medical workers must
properly full tleir professional roles and must not allow
tleir personal beliefs to inuence tleir clinical judgement
or aect tle carrying out of tleir professional responsi-
bilities. For example, it was already seen tlat tle Court
rejected a claim made by Catlolics working in a plarmacy
in France tlat tley ouglt not be required to dispense
contraceptives.
r;
It may similarly be expected tlat medical
workers may be required to refrain from wearing religious
symbols or clotling wlicl miglt legitimately cause tle sick
and tle vulnerable, and tleir relatives, to be apprelensive
as to tleir professionalism and objectivity. Tis does not
mean tlat a person of a given religious persuasion may be
barred from some medical roles: wlat it does mean is tlat
if tlose of a given religious view cloose to be employed in
sucl a position, tlen tley miglt expect to be required to
act in accordance witl tle relevant professional standards
ratler tlan witl tleir personal belief systems, slould tle
two dier in any respect.
r8
At tle same time, it is recognised tlat as places of lealing
and caring, lospitals must cater for tle spiritual as well as
plysical needs of tlose patients wlicl desire it. To tlat
end, tle state may employ, or permit access to, clergy or
otler religious personnel and it goes witlout saying tlat,
since tleir function is religious in nature tlen tlere ouglt
to be no restriction upon tleir wearing or displaying reli-
gious clotling or symbols: it is wlat tley are tlere to do.
It is equally clear tlat tle demands of state neutrality and
impartiality does not extend to preventing patients from
; Pichon and Sajous v. France (dec.), op.cit.
8 It may, of course, be possible for tle respective positions to be
reconciled tlrougl tle use of sympatletic practical arrangements
since tlere is no need to compel public servants to undertake
tasks wlicl run counter to tleir conscientiously leld beliefs.
Indeed, tle demands of pluralism and tolerance may require tlat
tlese options be explored. In tle face of fundamental conict,
lowever, tle position remains as stated.
displaying religious symbols wlicl may be a comfort to
tlem, tlougl some restrictions may be necessary in order
to ensure mutual respect and tle riglts and freedoms of
otlers from time to time in particular situations wlere sucl
symbols may impede tle recovery or quietude of otler
patients.
It is clear tlat tle complexities of tle medical setting pre-
clude tle application of a rigid approacl to tle wearing of
religious symbols by botl employees and by patients and
tlat specic issues can only be resolved in tle liglt of tle
principles identied in tle earlier sections of tlis Manual.
(b) Military settings
A similar range of issues applies in tle military setting. Te
Court made it clear as long ago as tle Engel case
r,
tlat,
wlilst certainly able to benet from tle enjoyment of Con-
vention riglts, members of tle armed forces miglt expect
to be subject to a greater number of limitations tlan civil-
ians. Tus in tle case of Kala v. Turkey, tle Court noted
tlat in exercising lis freedom to manifest lis religion, an
individual may need to take lis specic situation into ac-
count and tlat In cloosing to pursue a military career Mr
Kala was accepting of lis own accord a system of military
discipline tlat by its very nature implied tle possibility of
placing on certain of tle riglts and freedoms of members
of tle armed forces limitations incapable of being imposed
on civilians. States may adopt for tleir armies disciplinary
regulations forbidding tlis or tlat type of conduct, in par-
ticular an attitude inimical to an establisled order reecting
tle requirements of military service.
ao

Once again, tlis legitimates placing restriction on tle wear-
ing of religious symbols but it does not require tlat tlere be
sucl restrictions. Once again, tlis falls witlin tle margin of
appreciation of tle state and its decision must be consonant
witl tle concepts of neutrality and impartiality. Civen tle
security function of tle armed forces, tle need for tlem
to project tle values of pluralism and tolerance are likely
to merit particular weiglt and it is clear from tle case-law
, Engel and Others v. the Netherlands, judgment of 8 )une ,;6,
Series A No. ::.
:o Kala v. Turkey, op.cit., paragrapls :;-:8.
of tle UN Human Riglts Committee tlat tle wearing of
religious symbols or clotling is not necessarily inimical to
tle military function wlen doing so reects tle personal
beliefs of tle members of tle armed forces, ratler tlan a
manifestation of tle etlos of tle military as an institution.
Tus in its views in Riley v. Canada
ar
tle Human Riglts
Committee rejected tle argument put forward by tle appli-
cant tlat tle wearing of a turban by a member of tle Royal
Canadian Mounted Police (tle Mounties) would botl raise
an apprelension of bias in tle minds of civilians and also
tlat, since tle state slould be secular, it was a violation of
tleir Covenant riglt to freedom of religion or belief to lave
tle security forces of tle state present a religious face. By
deciding tlat tle wearing of religious symbols by security
forces did not interfere witl tle riglts of tle applicant, tle
Committee in eect rejected tle legitimacy of botl tlese
arguments.
As in tle lospital settings, tle state may also employ sta
to minister to tle spiritual needs of its security forces and
sucl sta will, as a natural consequence of tleir functions,
wear and display religious clotling and symbols in tle
course of tleir employment witlout in any sense rais-
ing questions regarding tle neutrality or impartiality of
tle state. Tis would only be at issue if tle state were to
respond to tle spiritual welfare of only one group of its em-
ployees and tle principles of non-discrimination requires
tlat tle legitimate needs of all its servants be met in tlis
faslion. Te closed nature of tle armed forces, particularly
in operational settings, means tlat tlere may be no alterna-
tive source of religious services available to tle serving
soldier. Tis makes it all tle more important tlat tle state
oer tlat provision in order to ensure tlat military person-
nel can enjoy tleir freedom of religion or belief, wlilst rec-
ognising tlat wlere military service is voluntary, tle scope
for legitimate restrictions on tle enjoyment of tle riglt will
be greater tlan in tlose instances in wlicl it is not.
: Riley v. Canada, op.cit.
(C) The Wearing of Religious Symbols in
Public Educational Institutions
Te context in wlicl tle wearing of religious symbols and
clotling las received tle most attention is tlat of public
aa

educational institutions. In many states, education is not
only directly provided by tle state but is also provided in
privately run educational institutions under a general regu-
latory scleme. Moreover, state education may sometimes
be directly provided tlrougl educational facilities provided
by private bodies, many of wlicl are religious in origins or
remain religious in botl name and etlos. In tle liglt of tlis
diversity of approacl witlin member states of tle Council
of Europe, and tle diversity of provision available witlin
eacl state itself, it is to be expected tlat tle state will enjoy
a considerable margin of appreciation in determining tle
balance to be struck between tle riglt of tle individual to
manifest tleir religion or belief and tle need to protect tle
riglts and freedoms of otlers and to avoid sucl institutions
becoming places of indoctrination ratler tlan of education.
In conducting tlis balancing act, tle state must be mind-
ful of tle need to be neutral and impartial in its approacl,
but at tle same time it slould be acting in a faslion witl
encourages pluralism and tolerance. Te tension between
tlese latter considerations is particularly problematic in
tle educational context. On tle one land, clildren and
young adults need to be free to make up tleir own minds
on matters of belief, yet in order to do so tley need to
be introduced to tlose beliefs and receive an education
wlicl, wlilst not biassed in favour or against a particular
form of religious belief or for or against religion in general,
acknowledges tle role of religion in tle life of believers and
its relationslip witl democratic pluralism. It is lelpful to
:: In many Council of Europe countries it is impossible to make a
clear distinction between public and private sclools. A public
sclool refers to a sclool wlose organisation, nancing and man-
agement are primarily tle responsibility of, or under tle primary
oversiglt of, a public body (state, regional, municipal, etc). A
private sclool is a sclool in wlicl, irrespective of wletler it
may receive degrees of support (including nancial support) from
public sources, matters of organisation, nancing and manage-
ment are primarily tle responsibility of tle sclool itself, or of a
non-public sponsoring body. (Denition adapted from tle OSCEs
Toledo Guiding Principles on Teaching about Religions and Belief
in Public Schools (:oo;)).
In the light of this diversity
of approach within mem-
ber states of the Council of
Europe, the state will enjoy
a considerable margin of
appreciation in determin-
ing the balance to be struck
between the right of the
individual to manifest their
religion or belief and the
need to protect the rights
and freedoms of others and
to avoid schools becom-
ing places of indoctrination
rather than of education.
consider tle situation of teaclers and pupils separately and
dierent considerations are relevant.
(a) The teacher
Te teacler, as an individual, enjoys tle freedom of
tlouglt, conscience and religion and teaclers may mani-
fest tleir religion or belief in accordance witl tle general
luman riglts framework. It is also axiomatic tlat teaclers
must approacl tleir task in a balanced and professional
faslion and must not exploit tleir teacling position to
impose personal beliefs tlat are inconsistent witl conscien-
tious beliefs of tleir pupils. Being in a position of autlor-
ity over clildren and young people may give tleir views
a particular weiglt. Moreover, by virtue of tleir laving
closen to work in an educational environment, a range of
restrictions may legitimately be placed upon teaclers wlen
tley are working in tle classroom in order to ensure tlat an
educational environment appropriate to tle sclool in ques-
tion is maintained and tlat tle luman riglts of parents and
clildren are respected.
Te manner in wlicl tlese factors come togetler is illus-
trated by tle case of Dahlab v. Switzerland. Te application
was a primary sclool teacler and a convert to Islam wlo,
after laving worn a leadscarf at work witlout tlis occa-
sioning any comment for a number of years was asked to
stop doing so in order to ensure tlat tle religious beliefs of
pupils and parents were respected, it being argued tlat tlis
was undermined by a teacler wearing a powerful religious
symbol ... Directly recognisable by otlers. Te applicant
contested tlis, arguing, inter alia, tlat tle mere fact of
wearing a leadscarf was not likely to inuence tle clil-
drens beliefs. In a passage wlicl merits being reproduced
at lengtl, tle Court said tlat:
it is very dicult to assess tle impact tlat a powerful ex-
ternal symbol sucl as tle wearing of a leadscarf may lave
on tle freedom of conscience and religion of very young
clildren. Te applicants pupils were aged between four and
eiglt, an age at wlicl clildren wonder about many tlings
and are also more easily inuenced tlan older pupils. In
tlose circumstances, it cannot be denied outriglt tlat tle
wearing of a leadscarf miglt lave some kind of proselytising
eect ... It tlerefore appears dicult to reconcile tle wear-
ing of an Islamic leadscarf witl tle message of tolerance,
respect for otlers and, above all, equality and non-discrimi-
nation tlat all teaclers in a democratic society must convey
to tleir pupils.
Accordingly, weigling tle riglt of a teacler to manifest ler
religion against tle need to protect pupils by preserving
religious larmony, tle Court considers tlat, in tle circum-
stances of tle case and laving regard, above all, to tle tender
age of tle clildren for wlom tle applicant was responsible
as a representative of tle state, tle Ceneva autlorities did
not exceed tleir margin of appreciation and tlat tle meas-
ure tley took was tlerefore not unreasonable.
a
Is tle balance to be struck in a dierent faslion wlen
tle teacling of older clildren or young adults is at issue:
Mucl will depend on tle contextual circumstances but,
once again, tle state las a wide margin of appreciation in
determining tle necessity of any restriction. For example,
in Kurtulmus v. Turkey
a(
tle Court dismissed an applica-
tion from an associate professor at Istanbul University wlo
lad been subjected to disciplinary procedures for wearing
a leadscarf at work, endorsing tle approacl adopted in
tle Dahlab case and in tle case of Leyla ahin v. Turkey,
a

considered below. Civen tle particular sensitivity of tle
educational context, teaclers may legitimately be subjected
to restrictions upon tleir wearing religious symbols and
clotling by tle state, provided tlis can be slown to be
compatible witl tle underlying etlos of tle educational
system, is applied in a non-discriminatory faslion and
is a proportionate response on tle facts of tle case. In
determining wletler sucl restrictions are legitimate, tle
principles of respect and tolerance must also be taken into
account.
(b) Students
Te importance of tle principles of toleration and respect
also explains tle signicance of tle increasingly important
issue of wletler clildren can manifest tleir religious beliefs
: Dahlab v. Switzerland (dec.), No. (:,i,8, ECHR :oo-V.
:( Kurtulmu v. Turkey (dec.), No. 6,,ooio, ECHR :oo6-II.
:, Leyla ahin v. Turkey [CC], ibid., paragrapl o,.
tlrougl tle wearing of religiously inspired clotling or sym-
bols wlile attending lessons, and wletler restrictions on
sucl clotling or symbols are compatible witl tle notion of
respect. Once again, tle resolution of sucl questions must
depend on tle facts of eacl case, but it will always remain
important to ensure tlat any restrictions placed upon tle
manifestation of religion or belief by pupils are strictly nec-
essary and in tle pursuit of legitimate aims of public safety,
lealtl, order, or tle protection of tle riglts and freedoms
of otlers, tle latter informed by tle importance of fostering
a tolerant and inclusive educational environment.
A furtler complexity is tlat tle younger tle clild, tle
greater may be tle impact of preventing tlat clild from
wearing a symbol or item of clotling wlicl tley labitu-
ally wear as tley may be less able to understand tle eect
wlicl it miglt lave on otlers and tle reasonableness of
a restriction in tle interests of fostering mutual tolerance,
sucl understandings being more accessible to tle older
clild or young adult.
In tle Dahlab case, for example, tle government made it
clear tlat tle prolibition on religious symbols and clotling
did not extend to pupils, as tley did not tlink tlis was nec-
essary in order to maintain tle secular nature of its sclools
and to preserve tle separation of clurcl and state. In tle
case of Leyla ahin v. Turkey, lowever, tle Court accepted
tlat sucl restrictions miglt legitimately be placed on
students at university if tlis were motivated by tle desire to
uplold tle secular nature of tle institution (tle assessment
of wletler tlis was necessary largely being a matter tlat
fell witlin tle margin of appreciation of tle state). Endors-
ing tle position of tle state, in its judgment tle Court said
it is tle principle of secularism ... wlicl is tle paramount
consideration underlying tle ban on tle wearing of reli-
gious symbols in universities. In sucl a context, wlere tle
values of pluralism, respect for tle riglts of otler, and, in
particular, equality before tle law of men and women are
being tauglt and applied in practice, it is understandable
tlat tle relevant autlorities slould wisl to preserve tle
secular nature of tle institution considered and so consider
it contrary to sucl values to allow religious attire.
a6
Te
Court subsequently adopted tle same approacl in uplold-
ing tle legitimacy of a ban on leadscarves imposed on
:6 Leyla ahin v. Turkey [CC], op.cit., paragrapl 6.
younger teenagers at a lyce in Istanbul in tle case of Kse
and others v. Turkey.
a;
Restrictions, tlen, may be imposed upon pupils as well as
teaclers. Tere is, lowever, an additional factor to be taken
into account. Attendance at sclools is usually compulsory.
Moreover, it may not be possible to avoid a prolibition on
tle wearing of religious symbols and clotling in one insti-
tution by tle expedient of moving to a dierent institution
wlere dierent rules miglt apply. For example, in tle do-
mestic case of R (ex parte Begum) v. Denbigh High School
a8

a number of UK judges in tle House of Lords took tle view
tlat tlere lad been no interference witl tle applicants
freedom of religion wlicl was attributable to tle state since
altlougl tle sclools uniform policy did not permit ler to
wear a jilbab to sclool, tlere were otler sclools tlat sle
miglt lave transferred to wlicl would lave allowed ler
to do so. Tey were, lowever, clear tlat lad tlere been no
alternative, matters would lave been dierent (altlougl on
tle facts of tle case tle Court was still of tle view tlat lad
tlere been an interference attributable to tle state tlen it
would lave been justied). Wlere tle state compels attend-
ance at secular institutions and prolibits in absolute terms
tle wearing of religious symbols and clotling, tlere is an
enlanced danger tlat tlis will itself foster intolerance of
religious diversity and inlibit tle advancement of plural-
ism, and so particular care must be taken wlen exercising
European scrutiny of tle domestic margin of appreciation
to ensure tlat tle core Convention principles of democ-
racy, respect, pluralism and tolerance are being properly
reected in tle regulatory scleme.
(c) Administrators and others
Sclools are places of work for many besides teaclers and
pupils, sucl as administrators, secretaries, cooks, caretak-
ers, cleaners, etc and tleir position was toucled upon in
tle case of Ivanova v. Bulgaria. Te applicant was a swim-
ming pool manager at a sclool and also a member of tle
Word of Life, a Clristian Evangelical group. Following a
clange in leaderslip at tle sclool tle job description for
:; Kse and Others v. Turkey (dec.), op.cit.
:8 R (ex parte Begum) v. Denbigh High School, [:oo6] UKHL ,,
[:oo;] AC oo.
ler post was rewritten and sle was subsequently dismissed
from ler post. Te Court ultimately decided tlat sle lad
been dismissed on account of ler unwillingness to abandon
ler religious beliefs and tlat tlis amounted to coercion
and tlus violated Article ,. In tle course of argument tle
respondent state lad suggested tlat tle secular nature
of tle system of education ... applied botl to tle teacling
activities of tle sclool and to its premises.
a,
Altlougl tle
case did not address tle issue of non-teacling sta wearing
religious clotling or symbols, tle Court did make reference
to tle previous decisions is cases sucl as Knudsen v. Nor-
way,
o
Konttinen v. Finland
r
and Vogt v. Germany
a
saying
tlat tlese cases slowed tlat In tle context of complaints
under article , ... for dismissal from service ... pressuring
an individual to clange lis religious beliefs or preventing
lim from manifesting tlem would be an interference.
Tis
suggests tlat tle principles to be applied in sucl cases will
be tlose outlined in tle previous section concerning state
employees and tlat wlilst tle educational context is rel-
evant to tlat determination, it does not preclude tle wear-
ing of sucl clotling and sucl symbols per se. Nor slould it
be assumed tlat limitations wlicl miglt be appropriately
placed upon teaclers witl prolonged direct contact witl
students would necessarily be appropriate for tlose wlose
work is ancillary to tle teacling role.
(D) The Private Sector
Te previous sections lave focussed on tle public sector
but tle issues addressed above will also arise in tle con-
text of tle private sector. Wlere tle private sector is being
used by tle state to full wlat would otlerwise be state
functions sucl as tle use of private security guards to
transport prisoners tlen tle same considerations as are
relevant to tle public sector will apply in equal measure
and no furtler examination is necessary. Tere are, lowev-
er, two particular areas wlicl do require furtler considera-
:, Ivanova v. Bulgaria, op.cit, paragrapl ;(.
o Knudsen v. Norway, op.cit.
Konttinen v. Finland, op.cit.
: Vogt v. Germany, op.cit.
Ivanova v. Bulgaria, op.cit., paragrapl 8o.
tion, tlese being general employment in tle private sector
and private education.
(a) General private sector employment
Altlougl tle state is not directly responsible for tle actions
of private employers, tlose working in tle private sector
remain free to enjoy tleir freedom of religion or belief and
tle state is obliged to ensure tlat restrictions tlat miglt be
placed upon tlem by tleir employers are compatible witl
Convention standards. Private sector employment is of
course subject to tle general provisions of employment law
wlicl, as a form of law wlicl is of general application, may
be tle source of legitimate restrictions upon tle wearing of
religious symbols in tle workplace. Te scope of sucl laws
las been considered above and does not need to be re-
peated lere. Likewise, it is beyond tle scope of tlis Manual
to consider tle compatibility of employment law in general
witl Convention standards. Nevertleless, private employ-
ment is very dierent to state employment. Wlilst private
employers must conform to laws of general application, tley
are not bound to project tle values of neutrality, respect
and tolerance in tle same manner as tle state. Provided tlat
tley are operating witlin tle parameters set by tle more
general legal framework, tley may encourage and promote
tle wearing of religious symbols or clotling if tley consider
tlis appropriate (as miglt many religious or religiously
inspired organisations). Likewise, private employers miglt
cloose to restrict tleir employees from doing so if tley wisl
again, provided tlat tlis is witlin tle limits provided by
law for tle proper protection of tle riglts of employees,
including luman riglts protections and anti-discrimination
legislation. In otler words, private employers enjoy a greater
degree of latitude wlen formulating tleir policies on reli-
gious symbols and clotling in tle workplace tlan is tle case
witlin tle public sector, provided tlat tle result remains
compatible witl domestic law. Te reason for tlis is twofold:
rst, tle employees freedom of religion and belief is consid-
ered to be adequately protected by tleir riglt to terminate
tleir contract of employment, as illustrated by tlose cases
concerning time o work for attendance at services or wor-
Those working in the private
sector remain free to enjoy
their freedom of religion
or belief and the state is
obliged to ensure that
restrictions that might be
placed upon them by their
employers are compatible
with Convention standards.
slip or religious festivals.
(
Second, tlere is not tle same
need to maintain neutrality in tle private workplace and in
tle delivery of private services as tlere is in tle public sec-
tor and in tle delivery of public services.

(b) Private education
It las already been pointed out tlat many educational
institutions are religious in origin. Te close intermingling
of education and faitl-based institutions in a consider-
able number of Council of Europe states las resulted in a
situation in wlicl many public educational establislments
are run by faitl traditions. Altlougl faitl-inspired, tley
nevertleless remain part of tle public educational system
and so are subject to tle same considerations as lave been
considered above. In many countries, lowever, tlere are
alternatives to tle public educational system in tle form of
private sclools, many of wlicl are also faitl based, eitler
in origin or in tleir contemporary etlos and orientation.
Since Article : of tle rst protocol to tle ECHR expressly
enjoins states, to respect tle riglt of parents to ensure
sucl education and teacling in conformity witl tleir own
religious and plilosoplical convictions in tle exercise of
any functions wlicl it assumes in relation to education and
to teacling, it miglt be argued tlat in tle private educa-
tional sector tlere is even greater freedom for sclools to
pursue tleir own approacles. Moreover, and by analogy
witl private sector employment, since no one is compelled
to attend private sclools tlis furtler re-enforces tleir abil-
ity to adopt approacles to religious symbols and religious
clotling wlicl miglt dier from tlose in tle public sector:
if parents cloose to send tleir clildren to a privately run
sclool wlicl las a clear policy witl regard to religiously
( See, for example, Stedman v. the United Kingdom, op.cit., and
Kosteski v. the former Yugoslav Republic of Macedonia, op.cit.,
paragrapl ,.
, It is important to note tlat dierent considerations may apply
in situations wlere private employers miglt seek to insist upon
employees being adlerents of a particular faitl, or insist on tleir
wearing religious clotling in order to be oered a contract of em-
ployment in tle rst place. Te comments made lere relate only
to tle situation in wlicl an employee seeks to exercise a personal
wisl to wear a religious symbol or religiously inspired clotling,
and is prevented from doing so by a corporate policy.
inspired attire, tlen tlat is a matter for tlem indeed, it
miglt be tle very reason wly tley cloose to do so.
Botl of tlese arguments are only valid to a limited degree.
Te Court las made it clear tlat tle state remains respon-
sible for tle conduct of private as well as public sclools.
For example, in a case concerning tle use of corporal
punislment in a private sclool in tle United Kingdom,
tle government argued tlat wlilst ... tle state exercised
a limited degree of control and supervision over inde-
pendent sclools ... tle government denied tlat tley were
directly responsible for every aspect of tle way in wlicl
tley were run, in particular, tley assumed no function in
matters of discipline.
6
Te Court rejected tlis, noting rst
tlat tle state las an obligation to secure clildren tleir
riglt to education under Article : of Protocol No. and
tlat ... Functions relating to tle internal administration
of a sclool, sucl as discipline, cannot be said to be merely
ancillary to tle educational process.
;
Secondly, it observed
tlat in tle United Kingdom, independent sclools co-exist
witl a system of public education and so tle fundamental
riglt of everyone to education is a riglt guaranteed equally
to pupils in state and independent sclools, no distinction
being made between tle two.
8
It also noted tlat tle state
cannot absolve itself from responsibility by delegating its
obligations to private bodies or individuals.
,
In tle liglt of
tlis, tle Court concluded tlat in tle present case, wlicl
relates to tle particular domain of sclool discipline, tle
treatment complained of, altlougl it was tle act of a lead-
master of an independent sclool, is none tle less sucl as
may engage tle responsibility of tle United Kingdom under
tle Convention.
(o
As sclool dress codes are seen as intimately linked to more
general questions of sclool order and governance it seems
clear tlat tle Court would be prepared to consider tle re-
sponsibility of tle state engaged were sucl policies inimical
6 Costello-Roberts v. the United Kingdom, judgment of :, Marcl
,,, Series A no, :(;-C, paragrapl :,.
; Ibid, paragrapl :;.
8 Ibid, quoting Kjeldsen, Busk Madsen and Pedersen v. Denmark,
op.cit., paragrapl ,o.
, Ibid, quoting Van der Mussele v. Belgium, judgment of : Novem-
ber ,8, Series A no. ;o, paras :8-o.
(o Ibid, paragrapl :8.
to tle overarcling Convention values wlicl tle state edu-
cation system must promote. Tus, just as witlin tle state
system itself, tlere will be a margin of appreciation wlicl
may be exercised in sucl a way as to allow for a proper
balancing of tle etlos of tle institution witl tle need to
ensure tlat clildren are educated in an environment wlicl
properly respects tle freedom of religion and belief of all. In
conclusion, it can be said tlat wlilst tle nuance of applica-
tion may dier, tlere is no fundamental dierence in tle
approacles to be applied between tle public and tle pri-
vate educational sectors, since tle Court las made it clear
tlat tlere are no briglt lines to be drawn between tlem as
regards tle application of tle Convention.
(E) The Wearing of Religious Symbols and the
Criminal Justice System
A nal area wlicl merits particular consideration concerns
tle criminal justice system. Some of tle very earliest cases
involving tle freedom of religion and belief considered un-
der tle Convention system concerned tle riglts of prison-
ers and tlere is increasing interest in low religious autlori-
ties respond to tle perceived requirements of religious
believers at all plases of tle criminal justice process. We
are not concerned lere witl tle wearing of religious sym-
bols or religiously inspired clotling by members of tle law
enforcement agencies or tle presence of religious symbols
in police stations, courts and prisons. Since sucl person-
nel are state employees (or are to be considered as state
employees) exercising a quintessential state function, tle
principles already considered above will apply. Ratler, we
are concerned witl tle situation of tlose wlo are brouglt
into contact witl tle criminal justice system, as suspects,
witnesses, tle accused and tle convicted.
Te starting point must be tlat sucl individuals enjoy tle
riglt to manifest tleir religion or belief and tlis includes
tle wearing of religious symbols or clotling in exactly tle
same faslion as anyone else. We lave, lowever, already
seen tlat tlis may be restricted in tle interests of national
security and it is reasonable to permit tle security forces
to insist on tle removal of religiously inspired symbols
and clotling wlere tlis is necessary on security grounds.
(r

( See, for example, Phull v. France (dec.), op.cit.
Tis may reasonably be extended to situations in wlicl it
is necessary in order to secure tle proper administration
of justice, botl in court and in tle execution of custodial
sentences. In practice, tlis is likely to mean tlat tlere is
sometling of a sliding scale. For example, it may be neces-
sary to allow tle security forces to remove objects or items
of clotling in order to take a person into custody if tley are
resisting arrest, or if it lampers identication. Tis, low-
ever, is likely to be a temporary expedient and slould not be
prolonged for longer tlan is strictly necessary.
Wlilst a person is in pre-trial detention, tle European
Prison Rules expressly provide tlat Untried prisoners slall
be allowed to wear tleir own clotling if it is suitable for
wearing in prison
(a
and wlen a case comes to Court, tlere
is no general need to prevent tle accused and witnesses
from displaying religious symbols or wearing religiously-
inspired clotling unless tlis tlreatens tle integrity of tle
judicial process. For example, it may be tlat by displaying a
particular religious symbol or by wearing religious clotling
an individual miglt be attempting to inuence tle court in
tleir favour, making it more dicult to secure a conviction
or to discount tleir evidence. Under sucl circumstances,
a restriction may be justiable. Likewise, wlere religious
clotling may make identication or communication dif-
cult, or prevent a persons response to questioning from
being observed (and tlereby lampering tle fair conduct of
a case), restrictions may again be justiable.
Once a person las been convicted of an oence and
sentenced to a term of imprisonment, limitations upon
tleir ability to wear religious symbols or clotling become
progressively more dicult to justify, tlougl tle nature of
prison life may inevitably require a greater degree of limita-
tion tlan would otlerwise be acceptable. Te UN Human
Riglts Committee las said tlat persons already subject to
certain legitimate constraints, sucl as prisoners, continue
to enjoy tleir riglts to manifest tleir religion or belief to
tle fullest extent compatible witl tle specic nature of tle
constraint.
(
Te dicultly lies in assessing tlat degree of
compatibility. In assessing tle legitimacy of sucl restric-
tions a strict approacl to tleir necessity is needed and
(: Recommendation Rec(:oo6): of tle Committee of Ministers to
member states on tle European Prison Rules, Rule ,;().
( UN HRC Ceneral Comment No. ::, paragrapl 8.
regard slould be lad to tle European Prison Rules wlicl
provide in regard of sentenced prisoners tlat prison-
ers freedom of tlouglt, conscience and religion slall be
respected and Te prison regime slall be organised so far
as is practicable to allow prisoners to practise tleir religion
and follow tleir beliefs.
((

In its early jurisprudence, tle European Commission on
Human Riglts took a fairly robust approacl, seemingly
willing to justify restrictions on prisoners laving access to
religious artefacts or following religiously-inspired modes
of personal attire on relatively insubstantial grounds. For
example, in one very early case tle Commission accepted
tlat public order considerations justied tle prison au-
tlorities refusal to allow a practising Buddlist to grow a
beard on tle grounds tlat it would linder identication.
(

In a subsequent case, tle Commission concluded tlat tlere
lad been no violation of Article , wlere a Sikl lad been
required to wear prison clotling wlicl, le claimed, violat-
ed lis religious beliefs (albeit on tle grounds tlat tlis claim
was not substantiated).
(6
It is likely tlat a somewlat stricter
approacl would be taken by tle Court today, as it las been
by tle UN Human Riglts Committee wlicl considered tle
forced removal of tle beard of a Muslim prisoner to violate
lis freedom of religion or belief.
(;
One tling is, lowever,
absolutely clear. It is not permitted under any circumstanc-
es to use tle removal of, or restrictions upon, tle wearing
of religious symbols or clotling as a means of coercing
or punisling a suspect, witness or prisoner. Indeed, tle
removal of religious symbols or clotling miglt amount to
a form of inluman or degrading treatment or punislment
and render tle state in breacl of Article of tle ECHR.
(( Recommendation Rec(:oo6): of tle Committee of Ministers to
member states on tle European Prison Rules, Rule :,() and (:).
(, X v. Austria, no. ;,i6, Commission decision, ,6,, Yearbook of
tle European Commission on Human Riglts 8, p. 8(.
(6 X v. the United Kingdom, no. 8:i;8, Commission decision of 6
Marcl ,8:, Decisions and Reports :8, p. , at p. :;. Te European
Prison Rules do not require or preclude tlat sentenced prisoners
be made to wear prison uniform, but tley do require tlat any sucl
prison clotling slall not be degrading or lumiliating, Recom-
mendation Rec(:oo6): of tle Committee of Ministers to member
states on tle European Prison Rules, Rule :o(:).
(; Boodoo v. Trinidad and Tobago, Communication no. ;:i,,;
(views of : August :oo:, UN doc. Ai,;i(o, vol : (:oo:), p. ;6.
It is not permitted under
any circumstances to use
the removal of, or restric-
tions upon, the wearing of
religious symbols or clothing
as a means of coercing or
punishing a suspect, witness
or prisoner.
appendices
Relevant
Rights
Instruments
Freedom of
religion and to
manifest ones
religion
Prohibition of
discrimination
based on
religion
Freedom of
expression
Right to
education
Respect for
private life
Universal
Declaration of
Human Rights
Article 18
Article 29
(conditions
for limitations
to be
acceptable)
Article 2
Article 7
Article 19 Article 26 Article 12
International
Covenant on
Civil and Political
Rights
Article 18
Article 27
International
Covenant on
Economic, Social
and Cultural
Rights
Article 13
European
Convention on
Human Rights
Article 9 Article 14
Article 1,
Protocol
No. 12
Article 10 Article 2,
Protocol No. 1
Article 8
European Social
Charter (revised)
(
Article E
Framework
Convention for
the Protection
of National
Minorities
Article 5
Article 7
Article 8
UN Declaration
on the Elimination
of All forms of
Intolerance and
of Discrimination
Based on Religion
or Belief
Article 1
Article 6
Relevant Applicable
International Human Rights
Instruments
appendix
I
117
Te International Covenant on Civil and Political Riglts is legally
binding on all member states.
: Te International Covenant on Economic, Social and Cultural
Riglts is legally binding on all member states.
Protocol No. to tle ECHR las been ratied by all member states
except Andorra, Monaco and Switzerland. Protocol No. : to tle
ECHR las been ratied by tle following member states: Albania,
Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland,
Ceorgia, Luxembourg, Netlerlands, Romania, San Marino, Ser-
bia, tle former Yugoslav Republic of Macedonia, Ukraine.
( Te European Social Clarter (revised) las been ratied by tle
following member states: Albania, Andorra, Armenia, Azerbaijan,
Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Ceorgia,
Ireland, Italy, Litluania, Malta, Moldova, Netlerlands, Norway,
Portugal, Romania, Slovenia, Sweden.
, Te Framework Convention on tle Protection of National Mi-
norities las been ratied by all member states except Andorra,
Belgium, France, Creece, Iceland, Luxembourg, Monaco and
Turkey.
Relevant Applicable International Human Rights Instruments
Thematic
index
appendix
II
Armed forces 6, ,, ;;, o
Blasplemy 6
Clotling , (, (o, ,(, 6, 6,,6,, 8, 8,, 8,, ,,, o6,
Council of Europe (, (o, ,,, o, o
Democratic society ;, 8, ,, (6, ;6, 86, ,(
Discrimination 6, ,, ,, o:, o,, 6
Education ::, 6,, ;6, ,8, o, o, 6
European Convention on Human Riglts (, (o, 6
European listory
European Prison Rules
Ethos , , , , , ,
Forum internum 8, (, ;, :, ,;, ;;
Forum externum ,
Freedom to manifest religion and beliefs, restrictions ;, ,, , ;, :,
:,, 6, 6,, ;
Headscarf ,(, 6,, ;o, 8(, 8;, ,, o(
Holy days :(, ,,
Individual and community autonomy o
Individual and community responsibility :,, ,;
Legal entities , 6o
Manifestation of religion or belief ;, ,, , ;, :, :,, 6, 6,, ;
Margin of appreciation :o, o, (, 8, 86, ,:, o, :, :(
Medical services ,,
Neutrality and impartiality (, 6, 6(, 8, ,,
11
Oatl of allegiance 6
Object of religious veneration 6:, 66
Opinions and ideas ,
Parents, riglts of 6,, o(
Places of worslip 6
Pluralism :6, , (, (6, (8, ,(, 66, ;o, 8, 8;, ,,, o
Positive obligations ,, (,, ;;, :,
Prescribed by law ;, 8, 86, :,
Private sector o8
Proportionate measures 8, 8;, :,
Proselytizing :;, 6;
Provocative portrayal ;, :,, 6:, 66
Public area ,,, ;
Public order ;, ,, (,, ,, ;,, ,:, ,,, (
Public safety ;, ,, ,, ,o, o6
Public security ,
Religions, teacling of ::, :, :(
Religious artefact 6, (
Religious symbols :,, (, ,,, 6(, 8, ,6, o, :
Respect :6
Visibility of religion ,,, ;
Wearing symbols 68, ;
Thematic index
List of judgments and
decisions cited (by
alphabetical order)
appendix
III
European Court of Human Rights
Abdulaziz, Cabales and Balkandali v. the United Kingdom, :8 May
,8,
Buscarini and others v. San Marino [GC], 8 February ,,,
Campbell and Cosans v. the United Kingdom, :, February ,8:
Canea Catholic Church v. Greece, 6 December ,,;
Case of Members of the Gldani Congregation of Jehovahs Wit-
nesses and Others v. Georgia, May :oo;
Case of Freedom and Democracy Party (OZDEP) and others v. Tur-
key [GC], 8 December ,,,
Casimiro v. Luxembourg (dec.), :; April ,,,
Chaare Shalom Ve Tsedek v. France [CC], :; )une :ooo
Church of Scientology Moscow v. Russia, , April :oo;
Costello-Roberts v. the United Kingdom, :, Marcl ,,
Dahlab v. Switzerland (dec.), , February :oo
Dudgeon v. the United Kingdom, :: October ,8
Engel and Others v. the Netherlands, 8 )une ,;6
Folger and Others v. Norway [CC], :, )une :oo;
Handyside v. the United Kingdom, ; December ,;6
Hasan and Chaush v. Bulgaria [CC], :6 October :ooo
Hasan and Eylem Zengin v. Turkey, , October :oo;
Ilascu and others v. Moldova and Russia [GC], 8 )uly :oo(
Ivanova v. Bulgaria, : April :oo;
Kala v. Turkey , )uly ,,;
Kjeldsen, Busk Madsen and Pedersen v. Denmark, ; December
,;6
Kokkinakis v. Greece, :, May ,,
Kse and Others v. Turkey (dec.), :( )anuary :oo6
Kosteski v. the former Yugoslav Republic of Macedonia, April
:oo6
Kurtulmus v. Turkey (dec.), :( )anuary :oo6
Kuznetsov v. Russia, )anuary :oo;
11
Larissis and Others v. Greece, :( February ,,8
Laskey, Jaggard and Brown v. the United Kingdom, , February
,,;
Leyla ahin v. Turkey [CC], o November :oo,
Manoussakis and Others v. Greece, :6 September ,,6
Metropolitan Church of Bessarabia and Others v. Moldova, De-
cember :oo
Moscow Branch of the Salvation Army v. Russia, o, October :oo6
Murphy v. Ireland, o )uly :oo
Norwood v. the United Kingdom (dec.), 6 November :oo(
Otto-Preminger-Institut v. Austria, :o September ,,(
Pichon and Sajous v. France (dec.), : October :oo
Phull v. France (dec.), )anuary :oo,
Plattform Arzte fur das Leben v. Austria, : )une ,88
Pretty v. the United Kingdom, :, April :oo:
Refah Partisi (the Welfare Party) and Otlers v. Turkey, )uly
:oo.
Selmouni v. France [CC], :8 )uly ,,,
Serif v. Greece, ( December ,,,
Socialist Party of Turkey (STP) and Others v. Turkey, : November
:oo
Soanopoulos and Others v. Greece (dec.), : December :oo:
Sunday Times v. the United Kingdom (no. ), judgment of :6 April
,;,
Supreme Holy Council of the Muslim Community v. Bulgaria, 6
December :oo(
Tlimmenos v. Greece [GC], 6 April :ooo
Valsamis v. Greece, 8 December ,,6
Van der Mussele v. Belgium, : November ,8
Vogt v. Germany, :6 September ,,,
Wingrove v. the United Kingdom, :, November ,,,
Yazar and others v. Turkey, o, April :oo:
European Commission of Human Rights
Arrowsmith v. the United Kingdom, : October ,;8
Choudhury v. the United Kingdom, , Marcl ,,
Knudsen v. Norway, 8 Marcl ,8,
Konttinen v. Finland, December ,,6
Stedman v. the United Kingdom, , April ,,;
X and the Church of Scientology v. Sweden, , May ,;,
X v. Austria, ,6,
X v. the United Kingdom, : Marcl ,8
X v. the United Kingdom, 6 Marcl ,8:
List of judgments and decisions cited (by alphabetical order)
Other bodies and courts
Boodoo v. Trinidad and Tobago, :oo: (Human Riglts Committee
of tle United Nations)
K. Singh Bhinder v. Canada, ,8, (Human Riglts Committee of tle
Oce of tle United Nations)
Playfoot v. Governing Body of Millais School, :oo; (England and
Wales Higl Court)
R (ex parte Begum) v. Denbigh High School, :oo6 (United Kingdom
House of Lords)
Riley v. Canada, :oo: (Human Riglts Committee of tle United
Nations)
III
Glossary
appendix
IV
Any person, non-governmental organisation or group of
persons tlat brings a case before tle European Court of
Human Riglts. Te riglt to do so is guaranteed by Article
( of tle European Convention on Human Riglts. It is
subject to tle conditions set out in Article , of tle Con-
vention.
Te full title is tle Convention for tle Protection of Hu-
man Riglts and Fundamental Freedoms, usually referred to
as tle ECHR or tle Convention. It was adopted in ,,o
and entered into force in ,,. Te full text of tle Conven-
tion and its additional Protocols is available in o languages
at http://www.echr.coe.int/. Te clart of signatures and rati-
cations as well as tle text of declarations and reservations
made by State Parties can be consulted at http://conventions.
coe.int.
Te European Court of Human Riglts was set up in Stras-
bourg by tle Council of Europe Member States in ,,, to
deal witl alleged violations of tle ,,o European Conven-
tion on Human Riglts. Since November ,,8 it las sat as
a full-time Court composed of an equal number of judges
to tlat of tle States party to tle Convention. Te Court ex-
amines tle admissibility and merits of applications submit-
ted to it. It sits in Clambers of ; judges or, in exceptional
cases, as a Crand Clamber of ; judges. Te Committee of
Ministers of tle Council of Europe supervises tle execution
of tle Courts judgments.
Te ECHR provides for tle limitation of certain riglts for
tle sake of tle greater public interest. Te European Court
of Human Riglts las leld tlat wlen riglts are restricted
tlere must be a fair balance between tle public interest at
stake and tle luman riglt in question. Te Court is tle
nal arbiter on wlen tlis balance las been found. It does,
lowever, give States a margin of appreciation in assess-
Applicant
European Convention on
Human Rights
European Court of
Human Rights
Fair balance
ing wletler tle public interest is strong enougl to justify
restrictions on certain luman riglts. See also margin of
appreciation, public interest.
Any instance wlere tle enjoyment of a riglt set out in tle
Convention is limited. Not every interference will mean
tlat tlere las been a violation of tle riglt in question.
Many interferences may be justied by tle restrictions pro-
vided for in tle Convention itself. Cenerally for an interfer-
ence to be justied it must be in accordance witl tle law,
pursue a legitimate aim and be proportionate to tlat aim.
See also legitimate aim, prescribed by law, proportionality.
Tis expression is used by tle Court in connection witl a
number of Articles of tle Convention: Article 8 (riglt to
respect for private and family life and for lome), Article ,
(freedom of tlouglt, conscience and religion), Article o
(freedom of expression), Article (freedom of assembly
and association). Wlile tle Convention seeks to safeguard
tle freedom to manifest ones religion or beliefs, Court does
recognise tlat, in certain specic circumstances, restric-
tions may be acceptable. However, tle measures imposing
sucl restrictions slould meet a number of requirements
for tle Court not to nd a violation of tle riglt in ques-
tion. One of tlem is tlat tley slould be necessary in a
democratic society, wlicl means tlat tley slould answer a
pressing social need and pursue a legitimate aim. Article ,
lists tle broad categories of aims wlicl can be considered
as legitimate to justify an interference witl tle riglt to
freedom of tlouglt, conscience and religion: public safety,
public order, lealtl or morals, tle protection of tle riglts
and freedoms of otlers.
Te protection oered by tle Convention witl regard to
certain riglts is not absolute and provides for tle possibil-
ity for States to restrict tlese riglts to a certain extent. Tis
is true in tle case of tle riglts covered by Article , of tle
Convention. However, tle measures wlicl are taken by
tle autlorities to restrict tlese riglts slould meet certain
requirements: tley slould be prescribed by law, necessary
in a democratic society and tlus pursue a legitimate aim
(sucl as tle protection of lealtl or tle economic well-be-
ing of tle country), tley slould also be proportionate to tle
aim pursued. Once it establisles tlat tlese measures are
prescribed by law and are necessary in a democratic society
in pursuing a legitimate aim, it las to be examined wletler
Interference
Legitimate aim
Margin of appreciation
1 Appendices
tle measures in question are proportionate to tlis legiti-
mate aim. For tlis purpose, tle Court weigls tle interests
of tle individual against tlose of tle community to decide
wlicl prevail in particular circumstances and to wlat
extent tle riglts encompassed in tle Convention could
be curtailed in tle interests of tle community. It is in tle
context of tlis examination tlat tle idea of tle autlorities
enjoying a certain margin of appreciation las been de-
veloped. Indeed, tle Court las establisled tlat autlorities
are given a certain scope for discretion, i.e. tle margin of
appreciation, in determining tle most appropriate meas-
ures to take in order to reacl tle legitimate aim souglt. Te
reason wly tle Court decided tlat sucl leeway slould be
left to tle autlorities is tlat national autlorities are often
better placed to assess matters falling under tle Articles
concerned. Te scope of tlis margin of appreciation varies,
wlicl means tlat autlorities often lave a certain scope for
discretion in tleir actions. However, in no way slould tlis
margin of appreciation be seen as absolute and preventing
tle Court from any critical assessment of tle proportional-
ity of tle measures concerned.
Te Courts case-law in respect of a number of provisions
of tle Convention states tlat public autlorities slould not
only refrain from interfering arbitrarily witl individuals
riglts as protected expressly by tle Articles of tle Conven-
tion, tley slould also take active steps to safeguard tlem.
Tese additional obligations are usually referred to as
positive obligations, as tle autlorities are required to act
so as to prevent violations of tle riglts encompassed in tle
Convention or punisl tlose responsible.
Te term used in Article 8, paragrapl :, of tle Convention
is in accordance witl tle law but tlis is taken to mean
tle same as tle term prescribed by law wlicl is found
in paragrapls : of Articles ,, o and . Te purpose of tle
term is to ensure tlat wlen riglts are restricted by public
autlorities, tlis restriction is not arbitrary and las some
basis in domestic law. Te Court las stated for a restriction
to meet tle requirement it slould be adequately accessible
and its eects slould be foreseeable.
By proportionate measures tle Court means measures
taken by autlorities tlat strike a fair balance between tle
interests of tle community and tle interests of an indi-
vidual.
Positive obligations
Prescribed by law (in
accordance with the law)
Proportionate measures
Refer to Section VI (b)-(d) of tle manual for tlis notion as
well as tle wearing of religion symbols in public areas.
Te principle of subsidiarity is one of tle founding prin-
ciples of tle luman riglts protection meclanism of tle
Convention. According to tlis principle it slould rst and
foremost be for national autlorities to ensure tlat tle
riglts enslrined in tle Convention are not violated and to
oer redress if ever tley are. Te Convention meclanism
and tle European Court of Human Riglts slould only be a
last resort in cases wlere tle protection or redress needed
las not been oered at national level.
Religious symbols
Subsidiarity (principle
of)
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Manual On The Wearing of Religious Symbols in Public Areas

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Manual on the

Wearing of Religious Symbols

Tis broad, inclusive approacl wlicl places all forms of

Tis will always be

It cannot be overemplasised, lowever, tlat tlis does not

However, it is only sucl

It underlined tlis by going on to emplasise tlat tle

Tis is of particular importance for issues

Altlougl tlis is, strictly speaking, functional in

Once again, it is beyond doubt tlat an

We lave already seen tlat tle Court does not consider

ratler tlan accept

Tis approacl is to be welcomed, as it recognises tle

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